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2005 CHRT 23

CHRT

Smith v. Canadian National Railway

en

2005-06-15

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7116/index.do

2023-12-01

Smith v. Canadian National Railway Collection Canadian Human Rights Tribunal Date 2005-06-15 Neutral citation 2005 CHRT 23 File number(s) T939/5904 Decision-maker(s) Jensen, Karen A. Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE JIM SMITH Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADIAN NATIONAL RAILWAY Respondent RULING TO ADD A PARTY AND AMEND THE COMPLAINT MEMBER: Karen A. Jensen 2005 CHRT 23 2005/06/15 [1] On February 28, 2002, Jim Smith filed a complaint with the Canadian Human Rights Commission alleging that Canadian National Railway (CN) has been discriminating against him in employment on the basis of his disability. On May 19, 2004, the Canadian Human Rights Commission (Commission) referred the complaint to the Tribunal for further inquiry. [2] Mr. Smith is now asking that the complaint be amended to add allegations of retaliation against him by CN. He is also asking that the Workers' Compensation Board of British Columbia (the WCB) be added as a party to the complaint and that the complaint be amended to include allegations of retaliation and threats of retaliation by the WCB on behalf of CN. [3] CN does not oppose amending the complaint to add allegations of retaliation by CN. I. Background [4] Mr. Smith began working for CN in April, 1979. In November, 1997, Mr. Smith hurt his back while working. He filed a claim with the WCB. His claim was accepted and he received physiotherapy and other treatment for several months, returning to work in April, 1998. [5] Unfortunately, however, Mr. Smith's back condition worsened and in March, 1999, he was required to undergo surgery. For the remainder of 1999, Mr. Smith was off work, but participated in two work conditioning programs designed to build up his strength and mobility for an eventual return to work. These programs were sponsored by the WCB. [6] By January, 2000, a medical advisor for the WCB determined that Mr. Smith's condition had stabilized. The WCB placed certain restrictions on Mr. Smith's work activities, but stated that he could complete the graduated Return to Work Plan developed by the kinesiologist and orthopedic surgeon involved in his case. [7] The first Return to Work Plan in 2000 involved an attempt to gradually return Mr. Smith to his pre-injury position as a locomotive engineer. It was developed by a kinesiologist with CN. The WCB approved it and made recommendations to assist in making Mr. Smith's return to work a success. The WCB also provided him with short term disability benefits and health care benefits up to January 21, 2001. [8] The first Return to Work plan was unsuccessful. Mr. Smith was apparently experiencing ongoing back pain and spasms throughout the duration of the plan. He consulted with his physician, Dr. Appleton, about his ongoing back pain and spasms. Dr. Appleton recommended a neurological exam and indicated that Mr. Smith could not sit for greater than six hours. [9] The WCB referred Mr. Smith's medical file to a Board Medical Advisor for review. In a letter dated March 2, 2001, Ms. C. Arujo, a case manager for the WCB, stated that, based on the opinion provided by the WCB's medical advisor, Mr. Smith's pre-injury job was suitable. [10] As a result, effective January 21, 2001, the WCB terminated Mr. Smith's short term disability benefits. Ms. Arujo stated that vocational rehabilitation assistance was not necessary as Mr. Smith's pre-injury job was thought to be suitable. However, she stated that his file would be referred to the Disablity Awards Department for consideration of a permanent functional impairment award. [11] Mr. Smith appealed the WCB's decision that his pre-injury job was suitable and the decision to terminate his benefits to the Workers' Compensation Review Board. [12] In the meantime, CN developed several more Return to Work Plans in which Mr. Smith participated. They were, however, ultimately unsuccessful. [13] On February 28, 2002, Mr. Smith filed a complaint against CN with the Canadian Human Rights Commission alleging discrimination on the basis of disability. [14] In June, 2002, Mr. Smith's union advanced a grievance on his behalf alleging that the Company had violated the Collective Agreement by failing to accommodate Mr. Smith's disability. [15] On March 14, 2003, the Workers' Compensation Review Board allowed Mr. Smith's appeal of the WCB decision that his pre-injury job was suitable and that his benefits should be terminated. The Review Board held that employment as a locomotive engineer was unsuitable for Mr. Smith. The Review Board also ordered that he receive income continuity benefits from January 21, 2001 onward and a loss of earnings pension unless he was retrained for accommodated employment that would mitigate the loss of earnings. CN appealed this decision. [16] In April 2003, CN proposed that Mr. Smith train for a new position as a Traffic Coordinator in Prince George, British Columbia during the months of June and July, 2003. If he successfully completed the training program, Mr. Smith was to be offered the Traffic Coordinator position. [17] Mr. Smith began the training program in June, 2003. He completed a self-guided instruction component in Vancouver in June and then traveled to Prince George in July, 2003. [18] On July 4 and July 7, 2003, Mr. Todd McDonald, a vocational rehabilitation consultant with the WCB, communicated by fax and letter with Mr. Smith regarding his participation in the training program and his chances of receiving an offer for the position in Prince George. [19] In these communications, Mr. McDonald advised Mr. Smith of the WCB's view that the return to work plan in Prince George was appropriate, reasonable and necessary to assist Mr. Smith to return to work. He emphasized how important it was that Mr. Smith willingly participated in the Traffic Coordinator training program in Prince George notwithstanding the fact that he and his union had taken the position, in the grievance and human rights complaint, that he should be accommodated in Terrace. [20] Mr. McDonald also advised Mr. Smith that if he continued to insist upon a position in Terrace with the result that CN could not offer him the position in Prince George, then it might become necessary for the WCB to review the file to determine if any further vocational assistance should be offered. [21] On July 9, 2003, the union's grievance against CN was heard before Arbitrator Michel Picher. Arbitrator Picher rendered a decision on July 14, 2003, in which he dismissed the grievance. In his decision, Arbitrator Picher held that CN had fulfilled its responsibilities under the Collective Agreement and the Canadian Human Rights Act (the Act) to accommodate Mr. Smith. [22] In a file memorandum dated July 21, 2003, Todd McDonald of the WCB documented a telephone conversation with Tanya Gordon from CN about CN's concerns regarding the costs of the WCB's continued involvement in Mr. Smith's case should Mr. Smith be unsuccessful in obtaining the position in Prince George. According to the memorandum, Mr. McDonald told Ms. Gordon that given the current evidence on the file, Mr. Smith did not need further accommodation in terms of being able to lie down on the job or being allowed to leave work early. [23] In a letter dated July 29, 2003, CN informed Mr. Smith that the training program in Prince George had been terminated. The letter indicated that although Mr. Smith was capable of performing the duties of traffic coordinator in Prince George, he had yet to demonstrate any real commitment to learning the job. [24] The letter also stated that Mr. Smith had declined to follow instructions regarding how to correctly complete his diary entries and he appeared to have established a pattern of leaving his work area and/or leaving his work unattended for non-work related reasons. The letter suggested that there were other objective observations by the transportation supervisors in Prince George that supported the termination of the program. [25] In a letter dated August 21, 2003 to Mr. Smith's union, Mr. McDonald from the WCB appeared to respond to accusations made by the union that he had threatened Mr. Smith in his earlier communications with him. Mr. McDonald asserted that if the union was using the word threaten in the sense identified by the Webster's dictionary as to give signs or warning of or to announce as intended or possible, then he may have threatened Mr. Smith. However, Mr. McDonald maintained that his communications with Mr. Smith were simply meant to advise the latter that his evident lack of commitment to the Return to Work Plan in Prince George could have potential consequences as they related to his Workers' Compensation claim. [26] In a letter dated October 1, 2003, Todd McDonald informed Mr. Smith of the WCB's decision that he would no longer be entitled to ongoing vocational rehabilitation assistance following the termination of the Return to Work plan. Mr. McDonald stated that in the WCB's view, the plan was appropriate, reasonable and necessary, took into account Mr. Smith's compensable restrictions and allowed for considerable flexibility in performance of the work. He stated that there were non-compensable barriers to Mr. Smith's return to work. [27] These barriers included Mr. Smith's unwillingness to fully commit himself to the position in Prince George as evidenced by his continuing investigation of avenues to stay in Terrace. In addition, the decision cited a demonstrated inability on Mr. Smith's part to complete full shifts in the absence of medical restrictions supporting this inability. [28] Mr. Smith appealed the WCB's decision of October 1, 2003 to terminate his vocational rehabilitation benefits. It was, however, subsequently upheld by a Workers' Compensation Review Officer on July 12, 2004. [29] In a decision dated March 22, 2004, the Workers' Compensation Appeal Board dismissed CN's appeal regarding Mr. Smith's ability to work as a locomotive engineer. A. The Parties' Positions [30] Mr. Smith alleges that CN retaliated against him for filing a human rights complaint by interfering with the adjudication of his WCB compensation claims. He further states that CN's early termination of the training program in Prince George constituted retaliation. [31] With respect to the WCB, Mr. Smith alleges that Todd McDonald threatened him that if he did not withdraw his grievance and his human rights complaint, his WCB benefits would be terminated. He further alleges that the termination of his WCB benefits following the cancellation of the training program in Prince George constituted retaliation on behalf of CN for the filing of a human rights complaint against CN. [32] While in no way admitting to any of the allegations, CN does not oppose that part of Mr. Smith's motion to amend the complaint that deals with allegations of retaliation by CN. However, CN opposes the amendment of the complaint to include allegations of retaliation and threats of retaliation against Mr. Smith by the WCB. CN adopts the submissions of the WCB on this part of the motion. [33] The WCB argues that the motion should be dismissed because there is no chance that the allegations in the amendment regarding the WCB could possibly succeed. Furthermore, the WCB asserts that the Tribunal does not have jurisdiction over the WCB, a body which is within the exclusive jurisdiction of the provincial government. B. Issues [34] The first issue to be determined in this motion is whether the WCB should be added as a party. If it is appropriate to add the WCB as a party, then the question becomes whether the complaint should be amended to add the allegations against the WCB. [35] However, in order to determine whether to add the WCB as a party, one must first look at the requirements of the Act with respect to complaints of retaliation and/or threats of retaliation on behalf of a respondent. (i) Section 14.1 of the Act [36] Section 14.1 of the Act states that it is a discriminatory practice for a respondent or any person acting on their behalf, to retaliate or threaten retaliation against the complainant or the victim. Although this Tribunal has dealt with cases of retaliation by respondents, it has not yet had occasion to deal with allegations of retaliation by a person acting on behalf of a person against whom a complaint has been filed. [37] In order to determine what is meant by acting on their behalf it is appropriate to first look at the legislative context of the provision. [38] Section 4 of the Act provides that a discriminatory practice, as described in sections 5 to 14.1, may be the subject of a complaint under Part III, and if the complaint is substantiated, the person who has engaged in the discriminatory practice may be subject to an order under sections 53 and 54 of the Act. [39] Section 65(1) of the Act stipulates that, subject to the due diligence provision under subsection 65(2), the acts or omissions of an officer, a director, an employee or an agent of any person in the course of his or her employment, shall be deemed to be the acts or omissions of that person, organization or association. Thus, for example, an organization may be held liable for the discriminatory conduct of its agent if it was performed in the course of employment. However, the agent does not, by operation of s. 65(1) alone, become personally liable for the discriminatory conduct. [40] By virtue of s. 4 of the Act, s. 65 applies to complaints of retaliation under s. 14.1 with the result that an organization may be held liable for the retaliatory actions of its agent. However, once again, the agent would not be personally liable for its retaliatory actions by operation of s. 65(1) alone. [41] Given that s. 65 applies to s. 14.1, the words acting on their behalf in section 14.1 must have another meaning than what is expressed in s. 65(1) of the Act. Otherwise, it would have been unnecessary to have added the words acting on behalf of in section 14.1. [42] One of the notable differences is that, unlike the liability established under s. 65 of the Act, the person found to be acting on behalf of a respondent for the purposes of retaliation is directly liable for a discriminatory practice and may be subject to an order under sections 53 and 54 of the Act. [43] It is possible to glean an additional meaning of the words acting on their behalf from the French version of the Act. The French text of s. 14.1 describes the person acting on behalf of the respondent as celle qui agit en son nom, that is, someone who is acting in the name of the respondent. [44] The French wording of s. 14.1 directs our attention to the second of two definitions provided by the Canadian Oxford Dictionary for on behalf of. There, the term is defined as meaning in the interests of a person or as a representative of. [45] Based on the preceding analysis of the legislative context of the provision, I conclude that in order to fall within the ambit of s. 14.1, the person who is acting on behalf of the respondent must be taking retaliatory action or making threats in the name of the respondent, or as a representative of the respondent. Further, the retaliatory action taken or threats made in the name of the respondent must be with respect to the filing of a human rights complaint against the respondent. [46] Since s. 14.1 opens up the possibility that the other person, in this case the WCB, may be subject to an order under s. 53 of the Act, that person must be added as a party to the complaint. What is the law on adding a party to the complaint? C. Adding a Party [47] This Tribunal has held that it has the discretion to add parties to an inquiry under the appropriate circumstances (oral ruling on October 2, 2002 by Chairperson Mactavish in Desormeaux v. OC Transpo (T701/0602), referred to in Syndicat des employs d'excution de Qubec-tlphone v. Telus Comunications 2003 CHRT 31 at paragraphs 23 - 27). However, the Tribunal has also stated that the legislative context surrounding this discretionary power argues for a measure of restraint or caution in adding parties. [48] Under what circumstances is it appropriate to add a party? There are several Tribunal decisions which followed Desormeaux that provide some answers to this question. [49] For example, in the Telus case, the Panel declined to add the union as a party to the complaint. Among the circumstances that militated against the addition of the union as a party was the fact that nothing in the documentation submitted to the Panel indicated that the union or its members acted, or might have acted, in a discriminatory manner. [50] The Panel in Telus also noted that the addition of a new respondent at the stage of the Tribunal's inquiry into the complaint, with no formal complaint having been brought against it, deprives the new respondent of the opportunity to present certain grounds of defense before the Commission. [51] In Brown v. NCC 2003 CHRT 43, Member Groarke granted a motion by the Canadian Human Rights Commission to add the Department of Public Works and Government Services as a respondent to the proceedings. He held that the addition of Public Works was necessary to provide a proper remedy to the complainant in the event that he was successful in establishing discrimination. [52] Thus, what emerges from the Tribunal's decisions to date on this issue is that caution should be exercised when adding a party. A new party should be added at the inquiry stage only if the addition of the party is necessary to properly dispose of the complaint and if there is a tenable basis for the allegations against the new party. [53] With regard to the latter point, I wish to be clear that the threshold for establishing that there is a tenable basis for the allegations against a new party is not high. The Tribunal will not engage in a substantive review of the merits of the allegations. However, the fact remains that there must be a tenable basis to the allegations involving the new party in order to justify exercising the Tribunal's discretion to add a party. [54] In the present case, I am prepared to accept that there may be some basis for the allegations that the WCB retaliated and threatened retaliation against Mr. Smith. However, I am not satisfied that there is a tenable basis to the allegations that the WCB took these actions on behalf of CN. [55] Mr. Smith asserts that the following material on the file supports the allegations that the WCB was acting on behalf of CN: (1) documentation of discussions between CN and the WCB regarding the costs of accommodating Mr. Smith; (2) documentation of meetings between the WCB and CN to discuss Mr. Smith's Return to Work and progress in the Prince George training program; (3) documentation regarding the WCB's agreement with CN's position on a number of issues. [56] In my view, this material does not establish a tenable basis for the allegation that the WCB's actions with regard to Mr. Smith were done in the name of CN. [57] Section 16 of the Workers' Compensation Act of British Columbia ( the WCA) provides the WCB with the discretion to take the measures and make the expenditures that it considers necessary in order to assist workers in getting back to work or to assist in lessening or removing a handicap resulting from a workplace injury or disease. [58] I think that it is appropriate to infer, based on the wording of the WCA, that in order to fulfill its mandate under section 16 to assist workers in getting back to work, the WCB may need to work with the accident employer. [59] In my view, the material to which Mr. Smith points in his file does no more than suggest the existence of a working relationship between officials in the WCB and CN regarding Mr. Smith's return to work. Evidence of a working relationship is not enough, however, to lend any plausibility to the allegation that the WCB was acting on behalf of CN, or in order to advance CN's alleged interest in retaliating against Mr. Smith for filing the complaint. [60] In other words, evidence of a working relationship between the two organizations does not raise an implicit assumption that the WCB was acting in the name of CN in allegedly retaliating or threatening retaliation against Mr. Smith. [61] There is a link that is missing here, which, in my view, is essential to the success of Mr. Smith's motion. That link consists of allegations and some evidence about the relationship or events that occurred between the WCB and CN which would explain why the WCB would act as CN's representative against Mr. Smith. I do not see anything in Mr. Smith's submissions or on the file that addresses this missing link. [62] Therefore, I find that there is no tenable basis to Mr. Smith's allegations that the WCB acted on behalf of CN. For this reason, I find that it is not appropriate to add the WCB as a party to the complaint. In my view, if it is not appropriate to add the WCB as a party, then Mr. Smith's request to amend the complaint must also be denied. II. Order [63] In view of the fact that CN does not oppose Mr. Smith's request to amend the complaint to add the allegations of retaliation by CN, this part of the motion is granted. The complaint should be so amended. [64] However, the request to add the WCB as a party and to amend the complaint to add the allegations of retaliation and threats of retaliation by the WCB on behalf of CN is denied. Signed by Karen A. Jensen OTTAWA, Ontario June 15, 2005 PARTIES OF RECORD TRIBUNAL FILE: T939/5904 STYLE OF CAUSE: Jim Smith v. Canadian National Railway RULING OF THE TRIBUNAL DATED: June 15, 2005 APPEARANCES: Jim Sayre For Jim Smith Daniel Pagowski For the Canadian Human Rights Commission Joseph H. Hunder Scott A. Nielsen For Canadian National Railway For the Workers' Compensation Board of British Columbia

2005 CHRT 24

CHRT

Kasongo v. Farm Credit Canada

en

2005-06-21

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7119/index.do

2023-12-01

Kasongo v. Farm Credit Canada Collection Canadian Human Rights Tribunal Date 2005-06-21 Neutral citation 2005 CHRT 24 File number(s) T932/5204 Decision-maker(s) Doucet, Michel Decision type Decision Decision status Final Grounds Family Status National or Ethnic Origin Race Decision Content Between: Daniel Kasongo Complainant - and - Canadian Human Rights Commission Commission - and - Farm Credit Canada Respondent Decision Member: Michel Doucet Date: June 21, 2005 Citation: 2005 CHRT 24 Table of Contents I. Introduction. II. Facts. III. Legal Analysis. A. The Position of FSL Instructor B. The Position of Bilingual Communications Officer C. The Position of Diversity Advisor D. The Position of Translator IV. Decision. I. Introduction [1] In the fall of 2000, the Complainant filed a complaint with the Canadian Human Rights Commission alleging employment discrimination on the basis of his race, national or ethnic origin, and family status, in contravention of section 7 of the Canadian Human Rights Act, R.S. 1985, c. H‑6. II. Facts [2] The Complainant, Daniel Kasongo Sadi, was born in the Democratic Republic of Congo. After completing his secondary studies, he won a competition that enabled him to leave his country of birth and study at the Antwerp Maritime Academy in Belgium, where he spent three years studying marine navigation. Following these studies, he left Belgium and went to Algeria, where he obtained a Foreign Going Mate Certificate. He then worked in marine navigation for two years, but since he was unable to obtain his marine officer’s service book, he had to reorient his career. [3] The Complainant worked as a musician for some time. Eventually, the Office of the High Commissioner for Refugees lent him assistance, which enabled him to leave the African continent. He was offered the opportunity to go to Australia, the United States or Canada. Since he had known a Canadian instructor in Algeria, he chose Canada. He arrived in Montreal on October 14, 1984, and became a Canadian citizen in 1988. [4] Once in Canada, the Complainant decided to return to school and choose a new career. He enrolled at Concordia University in Montreal, where he obtained a Bachelor of French Studies with a specialization in French Language Instruction. He had obtained a certificate in adult French Second Language Instruction (adult FSL instruction) from the same university in 1990. [5] After obtaining his Bachelor’s degree, the Complainant worked as an orientation officer on a volunteer basis for Services Catholiques pour Immigrants teaching French to new immigrants. The organization worked with Immigration-Québec at the time. The Complainant testified that this work inspired him to specialize in adult FSL instruction. [6] The Complainant’s next job, which he held from 1991 to 1998, was with the Commission des Écoles Catholiques de Montréal. He was an adult FSL instructor with that school board. In 1990‑91, the Complainant began a Master’s in Linguistics at the Université du Québec à Montréal with a special option in French Instruction. He took three courses but then abandoned the program. On his complaint form, the Complainant stated that he had a [Translation] Master’s degree in Linguistics with a specialization in French Instruction. Based on his curriculum vitae and his testimony, this is inaccurate. When cross‑examined regarding the inconsistency, the Complainant embroiled himself in rather unconvincing explanations. He admits that this is a mistake and that there are other mistakes in his complaint form, a fact that obviously casts doubt on the document’s reliability. [7] During the same period, the Complainant worked as a journalist for Radio Centre-Ville in Montreal and as an editor and journalist for a newspaper called Alternatives, for which he filed reports from the Great Lakes region of Africa, and for a magazine called Afrique. He also produced 24 programs for Échos d’Afrique. [8] Other positions held by the Complainant during his stay in Montreal were that of director of public relations and project manager of Safari Maison Interculturelle (an intercultural centre established to welcome immigrants) and that of executive director of the Centre Culturel Africain. [9] In 1997, the Complainant returned to the Congo (Zaire) where for roughly six months he was the national director of the Radio-télévision Nationale du Congo. He then returned to Canada to be with his wife, who was pregnant with their second child. In May 1998, he decided to leave for Western Canada to find work. His intention was to go to British Columbia, but his car broke down in Regina, Saskatchewan, where he decided to settle and look for employment. [10] The Complainant’s first job in Saskatchewan was with the Conseil Culturel Fransaskois.[1] Shortly thereafter, he obtained a position with the Language Institute of the University of Regina as an adult FSL instructor. He began this job on a part-time basis during the summer, teaching FSL to CBC technicians. [11] In September 1998, the Complainant taught three French courses at the Language Institute. The Institute also hired him to give French courses to public servants, a judge, and a senior University official. [12] In May 1999, he began a new part‑time job at the CBC on the weekends. In the summer of that year, he left the Institute and began working for the CBC full-time. During the same period, he taught FSL to adults at the RCMP Training Academy. [13] Since November 2002, the Complainant has been working for the Canada School of Public Service in Ottawa, where he teaches FSL to federal public servants. [14] In his complaint form, the Complainant alleges that he was discriminated against based on his race, his national or ethnic origin and his family status, in contravention of section 7 of the Canadian Human Rights Act. [15] Specifically, he claims that in late July 1999, he responded to a job posting for an FSL instructor with the Farm Credit Corporation, which is now called Farm Credit Canada (the Respondent). The position was advertised in the Regina newspapers. The Complainant allegedly sent a resume and covering letter to Marie-France Kenny, the Respondent’s Director of Official Languages and Translation. In his complaint form, he also claims he submitted his resume during the year 2000 for a position of employment equity officer and for a translator position. His applications for all three positions were unsuccessful. [16] The complaint form also alludes to nepotism in the Respondent’s recruitment process. The Complainant alleges that unless one is a member of [Translation] one of the important Fransaskois families, it is difficult to obtain a position with the Respondent. At the hearing, the Complainant adduced no conclusive evidence, only impressions, in support of this allegation. No witness was called to corroborate the Complainant’s perceptions in this regard. I wish to emphasize that neither impressions nor impressionistic evidence are sufficient to establish discrimination. Actual evidence is required. In view of the evidence before me, I have no reason to believe that the Respondent practiced the nepotism to which the Complainant refers, nor do I have evidence that members of important Fransaskois families are the only ones to be favoured in hiring. In light of this absence of evidence, I will not take those allegations into account in this decision. [17] Before addressing in greater detail the complaints regarding the different positions applied for, we should ascertain which legal principles apply to the case. III. Legal Analysis [18] Section 7 of the Canadian Human Rights Act states that it is a discriminatory practice to refuse to employ a person on the basis of a prohibited ground of discrimination. Race, colour, and national or ethnic origin are all prohibited grounds. [19] The initial burden of proof in cases such as this lies with the Complainant, who must establish a prima facie case of discrimination. (See Israeli v. Canadian Human Rights Commission and Public Service Commission (1983), 4 C.H.R.R. D/1616 at 1618; Basi v. Canadian National Railway Company (1988), 9 C.H.R.R. D/5029; and Premakumar v. Air Canada, T.D. 03/02, 2002/02/04). [20] A prima facie case 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. (Ontario Human Rights Commission v. Etobicoke (Borough), [1982] 1 S.C.R. 202 at 208; Ontario Human Rights Commission and O’Malley v. Simpson-Sears Ltd., [1985] 2 S.C.R 536 at para. 28.) Thus, the question is whether there is evidence which would, in and of itself, establish on a balance of probabilities that the Complainant was discriminated against. [21] In Lincoln v. Bay Ferries Ltd, 2004 FCA 204, the Federal Court of Appeal specified, at para. 22, that the Tribunal must not take account of the respondent’s answer before concluding that a prima facie case has been established. The Court added that this element has no role in determining whether the complainant has met his or her burden of proof. [22] In the employment context, a prima facie case has been held to require evidence of the following elements: the complainant was qualified for the particular employment; the complainant was not hired; someone no better qualified but lacking the distinguishing feature which is the gravamen of the human rights complaint (i.e. race, colour, etc.) subsequently obtained the position (Shakes v. Rex Pak Ltd. (1982), 3 C.H.R.R. D/1001 at para. 8918.) [23] This criterion has been adapted to situations in which the complainant was not hired and in which the respondent continued to search for an appropriate candidate. In such cases, the following elements must be established in order to make out a prima facie case: the complainant belongs to one of the groups which are subject to discrimination under the Act, e.g. religious, disabled or visible minority groups; the complainant applied and was qualified for the job the employer wished to fill; although qualified, the complainant was rejected; and thereafter the employer continued to seek applicants with the complainant’s qualifications (Israeli v. Canadian Human Rights Commission and Public Service Commission (1983), 4 C.H.R.R. D/1616 at 1618). [24] In Premakumar v. Air Canada, T.D. 03/02, 2002/02/04, Chairperson Anne Mactavish, as she then was, noted: 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 [the complainant] has satisfied the O'Malley test, that is: if believed, is the evidence before [the Tribunal] complete and sufficient to justify a verdict in [the complainant’s] favour, in the absence of an answer from the respondent? [25] Once a prima facie case has been made out, the burden of proof shifts to the respondent, who must provide a reasonable explanation for the conduct complained of. If he provides a reasonable explanation of what would otherwise be discriminatory conduct, the burden will shift back to the complainant, who will have to show that the explanation was a pretext and that the true motivation behind the respondent’s acts was discriminatory. [26] The jurisprudence recognizes that it is difficult to prove allegations of discrimination by means of direct evidence. As mentioned in Basi: Discrimination on the grounds of race or color are frequently practised in a very subtle manner. Overt discrimination on these grounds is not present in every discriminatory situation or occurrence. (Basi, supra, at para. D/5038.) It is therefore the Tribunal’s task to take account of all the circumstances and ascertain whether what has been described as the subtle scent of discrimination is present. (Premakumar, at para. 79.) [27] The standard of proof in discrimination cases is the ordinary civil standard of the balance of probabilities: An inference of discrimination may be drawn where the evidence offered in support of it renders such an inference more probable than the other possible inferences or hypotheses. (Premakumar, at para. 81.) It is not necessary that discriminatory considerations be the sole reason for the actions in issue for a complaint to succeed. It is sufficient if race, colour or national or ethnic origin were factors in the decision not to hire. (Premakumar, at para. 82; Holden v. Canadian National Railway Company (1990), 14 C.H.R.R. D/12, at para. D/15.) However, it should be specified that the circumstantial evidence cannot merely be consistent with an inference of discrimination; it must also be inconsistent with other possibilities. [28] Indeed, discrimination has its own set of difficulties. Foremost among these, without question, is that the same set of circumstances may be open to a variety of interpretations. In Brooks v. Canada (Department of Fisheries and Oceans), 2004 CHRT 36, my colleague Paul Groarke noted as follows at para. 107: It could be said that the act of discrimination lies in differentiation. The problem is that this differentiation does not exist independently of the actions of the parties. It must be inferred. It follows that here is an element of judgement in any assessment of the circumstances that give rise to a complaint of discrimination. [29] The Tribunal must be careful in assessing evidence, which is often impressionistic. In Shakes, supra, the Board of Inquiry recognized the limits of this kind of evidence when it cited Professor Borins in Kennedy v. Mohawk College (1973): It should also be added that the Board must view the conduct complained of in an objective manner and not from the subjective viewpoint of the person alleging discrimination whose interpretation of the impugned conduct may well be distorted because of innate personality characteristics, such as a high degree of sensitivity or defensiveness. [30] As the Tribunal stated in Brooks, supra, the use of the word innate in this excerpt is unfortunate. However, the point that Professor Borins was trying to make is important: a Tribunal should be cautious in relying on the perceptions of the parties. [31] Those are the principles that I must apply in the instant case. The complaint form, signed by the Complainant on September 24, 2000, alleges discrimination with regard to three positions: adult FSL instructor diversity advisor translator [32] The position of bilingual communications officer is not mentioned on the complaint form, but was raised by the Complainant in his disclosure and at the hearing. Since the Respondent was notified of the Complainant’s intent to raise the question when he filed his disclosure on September 8, 2004, and since there is no resulting prejudice to the Respondent, the Tribunal intends to consider the facts surrounding this question in its decision. A. The Position of FSL Instructor [33] On July 31, 1999, the Respondent advertised an employment offer in The Leader Post, an English‑language Regina newspaper, and in the French‑language weekly L'Eau Vive, for a position of FSL instructor. According to the advertisement, the incumbent would provide group and private instruction to students of different levels. The position required the experience needed to customize training programs for students. The advertisement also required a good knowledge of the Programme de Base de Français au Travail (PBFT). The candidate was required to have a B.Ed. degree as well as excellent command of written and oral French, and have broad experience in teaching adults. The position was offered on a contractual basis and the incumbent was to be considered self-employed. Interested persons were invited to send [their] resume by August 6, 1999, to Marie-France Kenny who was then Director, Official Languages and Translation. At the hearing, Ms. Kenny was the [Translation] Director, Official Languages / Cultural Practices Business Partner, Human Resources. [34] Ms. Kenny is the Respondent’s Manager of Language Training. In this capacity, she prepared the material used to select the candidates, except the written French test, which is the Respondent’s standard test. She is responsible for preparing the interview guide and the questions that are asked. [35] Louise Beaudoin, Ms. Kenny’s Administrative Assistant, testified that a dozen people applied for the position. Ms. Kenny said that once she had the candidates’ resumes, she proceeded to select the candidates who would be invited to take the written test. Ms. Beaudoin was the person who contacted them to invite them to the test. Ms. Kenny corrected the test papers. [36] Since the Complainant felt he was qualified for the position, he decided to apply. The evidence does show that the Complainant has solid FSL instruction experience. [37] The Complainant claims to have gone to the Respondent’s offices in person to submit an envelope that was addressed to Ms. Kenny and contained his resume and a cover letter. The cover letter was never tendered in evidence. In fact, no cover letter, for any of the Respondent’s positions for which the Complainant claims to have applied, was ever produced in evidence. I am not satisfied with the Complainant’s explanations regarding the absence of these letters, and I have come to doubt whether they existed. [38] The Complainant states that he handed over the envelope at the reception desk. François Magnin, the receptionist that day, said that only a resume — no cover letter or envelope — was submitted. He added that if he had been handed an envelope, he would have stamped it Reception/Réception Received/Reçu without opening it. In this case, the stamp is on the copy of the Complainant’s resume, which means, according to Mr. Magnin, that the document was handed to him without an envelope. He also said that if the Complainant had told him that the document should be given to a specific person, he would have given it to that person. I have no reason to doubt Mr. Magnin’s testimony on this subject. He appeared to be a credible, reliable and impartial witness since his conduct is not directly in issue in this case. Given these circumstances, I accept his testimony when it contradicts the Complainant’s. [39] The Complainant claims he told Mr. Magnin he was there about the position advertised in L’Eau Vive and that Mr. Magnin replied [Translation] Yes, the position advertised by Marie‑France Kenny. However, under cross-examination, he admitted that this was the first time he made reference to this alleged conversation with Mr. Magnin. I prefer Mr. Magnin’s testimony to the Complainant’s. [40] On August 4, 1999, a few days after he submitted his application, the Complainant received a letter from the Respondent. The letter is signed by intern Tenille Nashiem on behalf of Misha Fafard, who was a staffing and employment relations assistant with the Human Resources Division. It states that there are no positions with the Respondent which match the Complainant’s profile, and informs the Complainant that his resume will be kept on file for six months. This, says Ms. Fafard, is the Respondent’s practice when a resume is received without any indication of the position for which the person has applied. [41] On or about August 9, after receiving the letter, the Complainant allegedly phoned the Respondent and asked to speak with Ms. Kenny to find out what was wrong. He spoke first with Ms. Fafard, who explained that she had received his resume, which had been placed in the file containing resumes sent without a cover letter as there had been no indication of the position for which the author of the letter was applying. When the Complainant said he was applying for the position of French instructor, Ms. Fafard told him she was unaware of the posting because the Human Resources Division was not involved in the staffing, which falls under Ms. Kenny’s responsibility. Thus, Ms. Fafard transferred the call to Ms. Kenny. Ms. Fafard adds that she went to look for the Complainant’s resume and sent it to Ms. Kenny. [42] Ms. Kenny says that she realized, while speaking with the Complainant, that he had the basic qualifications required to apply for the position. She told him that she would get his resume from the Human Resources Division even though the deadline for the conditions had expired. [43] The Complainant was invited to the written test and was then invited in for an interview. [44] The Complainant claims that he got the top score on the written test. This is confirmed by Nicole Bussières, a member of the interview committee. However, Ms. Bussières adds that all the candidates performed quite well on the written test and that the ranking was ultimately of little importance because the four best performers were selected for an interview. At the hearing, Ms. Kenny specified that the results on the written test and the interview were not cumulative. [45] The Complainant was asked to attend an interview for the position of instructor on August 19, 1999 at 9:00 a.m. The three other candidates invited to an interview were Lorraine Laliberté, Céline Merriman and Nicole Lemelin-Sarny. [46] Ms. Kenny attended the interview along with Nicole Bussières, one of the Respondent’s FSL instructors. Ms. Bussières is self‑employed; she is not a Respondent’s employee. The interview was the first time the Complainant met with the two people in question, though he did speak with Ms. Kenny on the telephone once earlier. The interview process was the same with all the candidates. [47] Ms. Kenny testified that her impression of the Complainant’s interview was very good. She adds that she found the interview [Translation] engrossing. She says that she found the Complainant [Translation] dynamic and creative. She had told Ms. Bussières that it would not matter if the three other candidates were not suitable because the Complainant was an excellent candidate. Nicole Bussières says she found the Complainant a [Translation] very interesting candidate. [48] Ms. Kenny and Ms. Bussières claim to have discussed the candidates between interviews. Before Ms. Lemelin-Sarny was interviewed, the choice was still Mr. Kasongo. After she was interviewed, the choice was between her and the Complainant. Ms. Kenny testified that she was leaning toward the Complainant, but that they finally opted for Ms. Lemelin-Sarny. [49] Ms. Bussières states that both candidates ranked equally on the interview. The factor that tipped the balance in favour of Ms. Lemelin-Sarny is that she taught two of Ms. Bussières’ students during a one‑week immersion course and the students strongly recommended her. The Complainant had also participated in the course, but he did so as part of a cultural activity, not as an instructor. Ms. Bussières added that if Ms. Lemelin‑Sarny had turned down the position, Ms. Kenny and she were in agreement that it would be offered to the Complainant. [50] According to Ms. Kenny, the Complainant could most certainly have adapted to the Respondent’s environment. However, her perception during the interview was that Ms. Lemelin‑Sarny already had the whole package. In Ms. Kenny’s words, she would [Translation] need less guidance. She added that Ms. Lemelin-Sarny had placed a particular emphasis on her teaching experience in the interview, while the Complainant showed that he was very creative but spoke about different experiences. She concluded that she could have worked with either candidate, but that she went along with Ms. Bussières’ choice because Ms. Bussières was the one who would be working with the successful applicant. [51] A few days after the interview, Ms. Kenny phoned the Complainant to inform him that the FSL instructor position had been given to someone else. [52] Let us now apply the legal principles described above to these facts. The Complainant has established that he belongs to a group that can be subject to racial discrimination. He has also shown that he had the academic qualifications and the experience necessary to meet the requirements of the FSL instructor position. The facts have shown that another person with similar qualifications was awarded the position and that this person is not black. Thus, the Complainant has made out a prima facie case of discrimination. Indeed, the Respondent has admitted to this finding and no additional time need be spent on it. [53] Since the Complainant has discharged the burden of establishing a prima facie case, the burden now shifts to the Respondent, who must provide a reasonable explanation for the conduct complained of. [54] Under the Respondent’s selection process, the candidates were to submit their resumes to Marie‑France Kenny no later than August 6, 1999. François Magnin testified that he received the resume from the Complainant without an envelope, and, more importantly, without a cover letter. The Complainant says it is his practice to include a cover letter with his resume, and, in support of this contention, he tendered copies of cover letters prepared under other circumstances. However, the Complainant was never able to present a cover letter for the position of FSL instructor, and this inability leads me to believe the letter never existed. [55] Mr. Magnin, the receptionist, testified that the Complainant did not tell him he was applying for a specific position. Consequently, in keeping with the Respondent’s practice, the Complainant’s resume was remitted to Human Resources, where it was placed in the general file so that it could be retained for six months. Once again, in accordance with the Respondent’s practice, a form letter was sent to the Complainant on August 4, 1999, informing him that there was no position matching his skills. The Complainant interpreted the letter as an attempt to exclude him from the process, but the evidence showed that when the Respondent receives a resume and the writer of the letter does not indicate which position he is applying for, the practice is to send him a standard letter of the kind sent to the Complainant on August 4, 1999. [56] After receiving the letter, the Complainant phoned the Respondent and spoke with Ms. Fafard, who explained that his resume had been placed in the file containing applications sent without a cover letter. After learning that the Complainant was applying for the position of FSL instructor, the call was transferred to Ms. Kenny. [57] Since Ms. Kenny was satisfied that the Complainant had the basic qualifications for the position, she invited him to the written test, followed by the interview, and she did so even though the deadline for submitting applications had passed. [58] In light of these facts, I cannot conclude that the Respondent intended to exclude the Complainant from the selection process at this stage. The Respondent provided a reasonable explanation of the conduct complained of. In fact, I find that the Complainant is largely, if not totally, responsible for the imbroglio that followed the submission of his resume for this position. If he had followed the instructions that were clearly set out in the vacancy announcement, and had filed his resume with Ms. Kenny as requested, he would have avoided a lot of frustration. [59] Twelve candidates, including the Complainant, were invited to take the French test. Four candidates, including the Complainant, were selected for an interview on August 19, 1999. Once again, since the Complainant got through these phases without difficulty, there is no evidence that the Respondent tried to exclude him from the position, by reason of his race or his ethnic origin, at this stage. [60] Marie-France Kenny and Nicole Bussières were responsible for interviewing the candidates who made it to the interview phase. Nothing worthy of being called notes was produced at the hearing, so we must rely on the participants’ memory to understand what happened during the interviews. [61] Two candidates were quickly ruled out at the interview stage. Both Ms. Kenny and Ms. Bussières testified that they were very impressed with the Complainant’s interview. Ms. Kenny added that she knew, from the moment he was being interviewed, that they had found an acceptable candidate no matter what else might happen. However, Nicole Lemelin-Sarny, the last candidate, impressed them just as much. Ms. Bussières says both candidates were equal in standing but that, in her mind, the balance tipped in Ms. Lemelin-Sarny’s favour because of the positive comments made by two students who had taken an immersion course at the University of Regina with the candidate. [62] As for Ms. Kenny, she adds that she clicked better with the Complainant, but felt that Ms. Lemelin-Sarny had more experience teaching Anglophones, while the Complainant’s experience was primarily with allophones (speakers of foreign languages). I must admit that I find Ms. Kenny’s conclusion on this matter puzzling to say the least. She never explained how this experience with allophones was so different from experience with Anglophones. [63] Ms. Kenny specifies that Ms. Lemelin-Sarny seemed more mature, poised and structured in her interview and gave the impression she would need less guidance than the Complainant. Lastly, she says that Ms. Lemelin‑Sarny spoke only about her teaching experience in the interview, while the Complainant spoke about a number of subjects. [64] Ms. Kenny adds that she deferred to Ms. Bussières in the final analysis because she was the one who would have to work with the successful candidate. They decided to offer the position to Ms. Lemelin-Sarny. [65] An analysis of both candidates’ resumes shows that the Complainant had greater experience than Ms. Lemelin‑Sarny teaching English as a second language to adults. Her experience consisted mainly of teaching in the public school sector. [66] However, I must point out that it is not the Tribunal’s role to review the merits of the Respondent’s choice and determine whether it was correct. There is a subjective element in every hiring process. The fact that the Respondent used subjective criteria in assessing the candidates, and that it may have erred in applying those criteria, does not in itself render its decision subject to attack on the basis that it is discriminatory. (See Folch v. Canadian Airlines International (1992), 17 C.H.R.R. D/261 at D/303). [67] The evidence showed which criteria were used to evaluate the candidates as well as the specific reasons it was felt the Complainant should not be the successful candidate. It is not my function to agree or disagree with the final choice, provided the choice was not made based on discriminatory grounds. [68] In view of the evidence as a whole, I am satisfied that the Respondent has discharged its burden with regard to this position, and has provided a reasonable explanation for the conduct complained of. The Respondent was able to explain the reasons that caused it to select Ms. Lemelin-Sarny instead of the Complainant as the incumbent, and nothing about those explanations suggests that the Complainant’s race or ethnic origin were a consideration. [69] Consequently, the burden shifts back to the Complainant, who must now show that the Respondent’s explanation was a pretext and that the true motivation behind the Respondent’s actions was discriminatory. [70] In Folch, supra, the Tribunal thought it important to note that [w]here subjective criteria are used, it may be necessary to scrutinize the hiring decisions more carefully to ensure that subjective assessments are not being used to mask discrimination. [71] It is true that discrimination is often invisible, and that people who discriminate generally do not realize they are doing so. This does not mean that others are unaware of the discrimination, however. Based on all the circumstances, can a subtle scent of discrimination, as the Tribunal so aptly described in Basi, supra, be shown to exist? Does the Complainant’s testimony provide evidence of this scent? In my opinion, it does not. Other than impressions, perceptions and the fact that he was convinced he was the best candidate, the Complainant has provided no evidence that the decision was based on considerations of race or colour. Nor does the context of the competition and the interviews provide any evidence that race was a factor that the Respondent considered in its decision. [72] There is no evidence in support of the Complainant’s contention that the question of race or ethnic origin was taken into consideration in the selection process. The race and ethic origin of the Complainant were not in the background of the selection process as they were in Brooks (supra, at para. 119). [73] In light of the foregoing, I find that the Complainant’s allegations of discrimination in the hiring process for the position of FSL instructor are unfounded. B. The Position of Bilingual Communications Officer [74] In August 1999, the Respondent advertised a vacancy for a bilingual communications officer. The deadline for submitting applications was set at August 6, 1999. The position was initially advertised only in Saskatchewan. Since no satisfactory candidate was found, the position was advertised again, nationally, on October 7, 1999. [75] The incumbent for the position of bilingual communications officer is a member of a team responsible for internal communications, media relations, speech writing and annual report preparation. The position requires an intimate understanding of the Canadian media and a degree in Journalism or Arts. Fluency in both written and oral English and French is essential; in fact, based on the Respondent’s classification system, the position requires a professional level of written and oral English and French. [76] The position of bilingual communications officer was not included in the Complainant’s original complaint. At the hearing, it was said that the Commission decided not to pursue the complaint because the Investigator determined that the Complainant did not appear qualified for the position. The Investigator was not called to testify and the bases of her findings were not tendered in evidence. [77] I would note, however, that on August 25, 2000, the Commission sent the Complainant a letter along with his complaint form. Among other things, the letter informed him that the Commission did not accept his allegations regarding the position. At the hearing, the Complainant said he had never seen the letter before. He explained that he decided in July 2000 to resettle in Belgium, and he did resettle there for a time. Yet, on September 24, 2000, he signed the complaint form enclosed with the letter, without asking that it be amended by adding the position of bilingual communications officer. I must admit that I have trouble believing the Complainant’s statement that he never received or saw the Commission’s letter prior to the hearing, considering that he does admit receiving and signing the complaint form enclosed with the letter. I do not accept the Complainant’s testimony on this point. [78] I note other inconsistencies in the Complainant’s testimony regarding this allegation. In the course of interviews with the Canadian Human Rights Commission Investigator, the Complainant contended the position was initially announced as a French communications officer position and was only categorized as a bilingual communications officer position when the second competition was announced. At the hearing, the Complainant admitted that this information provided to the Commission was incorrect. [79] Despite these facts which are unfavourable to the Complainant’s credibility, I have decided, as explained above, to consider his complaint regarding the position in issue. [80] According to the Complainant, Ms. Kenny followed the Complainant in the hallway after his interview for the FSL instructor position on August 19, 1999. She allegedly asked him if he was interested in the position of Bilingual Communications Officer; if his application for the instructor position was not successful, she could forward his resume to Pam Bristol, who was in charge of the bilingual communications officer position. The Complainant says he already knew about the position from the want ads, and that he had, in fact, submitted his application for the position. However, he says he did not give this information to Ms. Kenny because he feared it would interfere with his application for the position of FSL instructor. He says he accepted Ms. Kenny’s offer with misgivings as he was [Translation] under the impression that he was being pushed out of the competition for the position of instructor, though he nuanced this statement somewhat under cross-examination. [81] According to Ms. Kenny, this conversation did not occur on the date the Complainant claims it did. Rather, she says it occurred a few days later, when Ms. Kenny phoned the Complainant and notified him that his application for the teaching position had not been successful. Ms. Kenny adds that she also told the Complainant that the Respondent was looking for a bilingual communications officer, and asked him if she could send his resume to the person responsible for staffing that position. Ms. Kenny went to see Pam Bristol and handed the resume to her in person. Ms. Bristol confirmed this at the hearing. [82] The Complainant was invited to take the oral and written tests for the position. [83] The circumstances surrounding the position of bilingual communications officer trigger the criteria in Israeli, which apply where the complainant was not hired and where the respondent continued to look for a candidate. In order to establish a prima facie case in these situations, the Complainant must show that he belongs to one of the groups subject to discrimination under the Act. In this instance, we need not give this criterion lengthy consideration; the Complainant has shown that he met the criterion. Despite certain inconsistencies in the evidence, I also find that the Complainant applied for the position. [84] As noted, the Tribunal must not take the respondent’s answer into account at the stage where it is determining whether a prima facie case has been made out: Lincoln v. Bay Ferries Ltd, supra. Consequently, since the Complainant was invited to take the oral and written tests, I find that, for the purpose of establishing a prima facie case, he qualified for the position which the employer wished to fill, and that his application was rejected. The employer then continued to look for candidates with the complainant’s qualifications. [85] Since a prima facie case of discrimination has been established, the burden shifts to the Respondent, who must provide a reasonable explanation for the conduct complained of. In the present case, Ms. Bristol and the selection committee met with the Complainant. According to Ms. Bristol, the Complainant had an impressive portfolio of articles written in French. Ms. Bristol says he had an agreeable personality and adds that the interview went well. Consequently, the Complainant went on to the next stage in the selection process: the English communication test. Ms. Bristol specifies that the position requires the incumbent to write documents primarily in English, because the client base is primarily English-speaking. Ms. Bristol is the person who corrected the Complainant’s test. Upon correcting the test, she claims to have realized that while the Complainant’s English skills were good, they were not at the level required for the position. His application was therefore rejected. [86] At the hearing, the Complainant produced a document which was not disclosed earlier and which he said he found in a box of documents that he had just received from Saskatchewan. The document records an exchange of e-mails between Pam Bristol and the Complainant. In his e‑mail message, the Complainant inquires about the status of his application for the position of bilingual communications officer. Pam Bristol replies on September 8, 1999, notifying him that the Respondent is in the process of checking the other candidate’s references. She says the other candidate did better on the oral and written English tests and that the position requires the incumbent to work in English 70% of the time and that English skills are therefore very important. [87] A few days later, Ms. Bristol contacted the Complainant again, this time by telephone, to inform him that his application for the position had not been retained. She said that his English writing skills were not of publishable quality. She added that the Complainant appeared disappointed but unsurprised with the results. Since the other candidate’s application was rejected after the reference check as well, the position was advertised again. [88] After the second vacancy announcement, the position was offered to Yves Breton. Mr. Breton took the same oral and written tests as the Complainant. [89] I find that the Respondent has given a reasonable explanation of the reasons it decided to reject the Complainant’s application. Ms. Bristol was of the opinion that the Complainant’s oral and written English skills did not meet the standards required of the position. Moreover, the evidence submitted at the hearing shows that the Canadian Human Rights Commission was of the same opinion and that when the Complainant signed his complaint form without requiring an amendment, he was acknowledging the merits of the decision. [90] Consequently, the burden shifts back to the Complainant. He must show that the Respondent’s explanation was a pretext and that the true motivation behind the Respondent’s actions was discriminatory. The Complainant adduced no evidence in this regard. In fact, the only relevant evidence is that of Pam Bristol, who asserts that when she informed the Complainant of her decision, he seemed disappointed but not surprised about the outcome. The Complainant did not contradict this in his evidence or in his cross-examination of Ms. Bristol. [91] The Complainant’s allegations, to the effect that he was discriminated against when the position of Bilingual Communications Officer was staffed, are dismissed. C. The Position of Diversity Advisor [92] An advertisement was placed in the May 11, 2000, issue of L’Eau vive, to announce a vacancy for the position of diversity advisor. The diversity manager was seeking someone to assist in the planning, implementation and evaluation of the Respondent’s initiatives in this area. The candidates were to have a university degree in human resources or a related field and at least three years of solid experience in diversity, employment equity and project management in the workplace. The applications and resumes were to be submitted to Human Resources by May 19, 2000. [93] Martine Noël-Maw, the Diversity Manager, testified by affidavit. In her affidavit, she specified that she was looking for a qualified person with experience in diversity and equity because the position was short‑term and she absolutely needed someone with knowledge of the relevant laws. [94] The Complainant said he applied for the position. On June 30, 2000, he received a letter signed by Pat Seidler, Administrative Assistant to the Vice President, Human Resources, on behalf of Misha Fafard. The letter states that, for the moment, there [Translation] are no positions available that match your skills and experience. Ms. Fafard states that she was not aware of this letter, but adds that the Human Resources office automatically sends this form letter in the event of unsolicited resumes. [95] The Complainant states that this was roughly the time that he began recording his conversations with representatives of the Respondent. He says he did this because he felt there were [Translation] readily noticeable irregularities that suggest that marginalization was occurring. In his view, each time he applied for a position, he was told either that the resume did not get to the person in charge or that it had been lost in the bureaucratic machinery. However, based on the evidence, I cannot find that the [Translation] readily noticeable irregularities to which the Complainant refers exist. On the contrary, the circumstances as a whole tend to show that the Complainant has an improper understanding of the process for staffing the Respondent’s position and, as the facts have demonstrated, that the Complainant tends to exaggerate the facts. I admit that the Complainant was going through a difficult period, but nothing in the evidence presented enables me to conclude that discrimination was involved. [96] After receiving the letter of June 30, 2000, the Complainant phoned Ms. Fafard. The first person he spoke to was receptionist Laurie Cinq-Mars, whom he asked whether she had given his resume to Ms. Fafard. In the recording of this conversation, which was played at the hearing, Ms. Cinq‑Mars acknowledged that she received the resume and said she gave it to someone she did not identify. She added that if a position was available, the Complainant would be contacted. She then transferred the call to Ms. Fafard. Here are the relevant parts of the transcript of this conversation, which was prepared based on the playing of the cassette at the hearing: [Translation] . . . Mr. Kasongo: Um, I’m calling you because, well, you told me that you did not receive my resume. Ms. Fafard: Mm-hmm. Mr. Kasongo: Did... Ms. Fafard: You were supposed to send it by fax... Mr. Kasongo: Um, well you see… Ms. Fafard: ...last week, wasn’t it? [97] Indeed, the Complainant had contacted Ms. Fafard earlier to find out if she had received his resume for the position of diversity advisor. She apparently answered that she had not, and the Complainant apparently told her that he had submitted it to the reception desk. Ms. Fafard then apparently suggested that the Complainant fax in a new copy. Based on the conversation recorded by the Complainant, it appears that he never did so. [98] The recording continues: [Translation] Mr. Kasongo: Yes, But in fact I wanted to check… I checked with the receptionist… . . . Mr. Kasongo: ...who told me that she handed you my resume [In the recording of the conversation with Ms. Cinq-Mars, which was heard at the hearing, she did not say that she had submitted the Complainant’s resume to Ms. Fafard.] It’s been a month already since I submitted the resume for the position of employment equity officer and I have received no news. That’s why… Ms. Fafard: Which... which job? Sorry? Mr. Kasongo: It was... There was an opening. You advertised it in L'Eau vive... . . . Mr. Kasongo: ...for an officer responsible for employment equity... Ms. Fafard: Oh! Yes, yes. Mr. Kasongo: ...Equity Program. Yeah? Ms. Fafard: Yes. Um, the... that position is already filled... Mr. Kasongo: Yes. Ms. Fafard: ...but I spoke to you last week, and I think I told you to send your resume because we have a position at this time for a tran… a translator. Mr. Kasongo: Yes, yes. Ms. Fafard: Are you interested in that one? Mr. Kasongo: Sure! Of course! But I was interested in the other one, eh, but, well, I spoke to Laurie, and I wanted to confirm. She said she already gave you my resume. Ms. Fafard: O.K. Mr. Kasongo: Yes, and I ... Ms. Fafard: That one was for the other position. Mr. Kasongo: Yes, it was for the other position... Ms. Fafard: Yes. Mr. Kasongo: ...and the resumes are kept for six months at your organization. Ms. Fafard: Yes. Mr. Kasongo: Yes. So, do I have to send another resume again? Ms. Fafard: Oh! No, I can look for the other one. Mr. Kasongo: You can look for the other resume? Ms. Fafard: Yes. Mr. Kasongo: But why did you not call me for… at least, for the other position? I also wanted… That’s why I applied. Ms. Fafard: Well, it’s Martine Noël-Maw who… who was in charge of that… of that position. So I don’t know why she didn’t call. Normally, we don’t call candidates, unless they have… they are selec… um, are chosen for an interview. . . . Ms. Fafard: That’s the way we... we... it says this on all our… . . . Ms. Fafard: ...our advertisement in the paper. . . . Ms. Fafard: It says that you are... you are contacted... . . . Ms. Fafard: ... if you are chosen for an interview. Mr. Kasongo: O.K. So I wasn’t chosen for that? Ms. Fafard: Yes. Mr. Kasongo: O.K. Can you find the resume for the translator position? Ms. Fafard: Yes. Yes. I… I can… I can indeed use it for the… for that position. Mr. Kasongo: O.K. So there is no need for me to send you another resume? Ms. Fafard: No. Mr. Kasongo: O.K. O.K. That’s what I wanted to find out from you, in any case. . . . [99] The Complainant confirms that he was never invited to take the written exam or attend an interview for the diversity advisor position. Martine Noël-Maw says that she selected two people for interviews: a woman who was working for the Saskatchewan government in a capacity that involved equity, and the second person, an Aboriginal named Don Racette, who was ultimately given the position. Ms. Noël-Maw says she never received the Complainant’s resume. However, after seeing his resume, she adds that she would not have called him for an interview because he had neither the skills nor the experience sought for the position, in her view. The Complainant chose not to cross-examine Ms. Noël-Maw and her evidence on this subject was never contradicted. [100] Once again, the Complainant must first establish a prima facie case as described above. As far as this position is concerned, the Complainant did not meet this burden because he was unable to establish that he had the academic skills and experience needed to qualify. He does not have a university degree in human resources or a related field, and he did not adduce evidence of at least three years of solid experience in diversity, employment equity and project management in the workplace. [101] The Complainant’s allegations regarding this position are therefore dismissed. D. The Position of Translator [102] The Complainant never applied for this position. Rather, Ms. Fafard submitted the Complainant’s resume to Ms. Kenny for inclusion. Indeed, Ms. Fafard testified that, following her aforementioned telephone conversation with the Complainant, she found the Complainant’s resume in the file where resumes not accompanied by a cover letter are kept, and handed it to Ms. Kenny so she would consider it for the translator position. [103] The translator’s job is to translate various documents, originating from all the organization’s divisions, from English to French (80% of the time) and from French to English (5% of the time). [104] According to Ms. Kenny, even though the Complainant did not have a Bachelor’s degree in translation, she decided to consider him for the position. The Complainant was invited to take the written tests for the translator position. On July 4, 2000, he took the written test. Ms. Kenny said he failed it. She said his translation contained errors of terminology and agreement as well as anglicisms. [105] At the hearing, the Complainant said that the successful candidate did not take the same test as he did. However, he provided no evidence, other than suspicions, in support of his determination that there were irregularities. Without concrete evidence, I cannot accept these allegations by the Complainant. Impressions and suspicions do not constitute evidence. [106] Ms. Kenny testified that the written test is the same for everybody. It was done electronically. The applicants are asked to prepare their answer and save it to a diskette, which is then remitted to Ms. Kenny. For candidates unable to attend, e.g. out-of-province candidates, the test is done over the Internet and Louise Beaudoin, Ms. Kenny’s Assistant, administered the test by sending it to the candidate. The candidate has two hours to complete the test. The candidates who pass the written test are invited to an interview. [107] Shortly after completing the test, the Complainant spoke on the phone with Marie-France Kenny. He recorded the conversation. Here are a few excerpts: . . . Ms. Kenny: . . . I was calling you because I looked at your translation test again. . . . And unfortunately, I did not grant you an interview. And if you like, I’m prepared to share the corrections with you . . . or even to send them to you, and you will see for yourself . . . There are several things. There were several anglicisms — things like that — and even though you’re a good French teacher . . . I’m sure that Nicole, on the same translation test . . . that there were apparently also … because you don’t teach anglicisms, etcetera. . . . That’s why we were asking for a Bachelor’s degree in translation, because there are things that you learn when you do a Bachelor’s degree in translation. . . which you don’t necessarily learn when you teach French, do a certificate or, whatever — your Bachelor’s . . . in French Second Language. . . . So if you want, I have no problem sending you your test . . . I can even send you an electronic copy if you want. . . and I put track changes on. So you can see what I added and what I struck out. So it will be very visible to you, then . . . so you can see it. So that’s why I called you. I corrected it, but I wanted to speak to you in person about it, you see. I didn’t want to send you a letter. I wanted to speak to you about it directly. Mr. Kasongo: Exactly. Pour for the translation, I … I completely agree with you. I just wanted to give it a try, and. . . . It’s not, um, my specialty. [Emphasis mine.] . . . [108] Based on this recording, which he tendered in evidence himself, the Complainant acknowledges that translation is not his specialty and that he was simply giving it a try when he applied. He also says that he agrees with Ms. Kenny’s comments regarding his written test. The Complainant did not seek to temper or explain these statements when he presented his evidence. [109] Based on the facts, I must conclude that the Complainant has been unable to make out a prima facie case of discrimination for the translator position. In other words, he was unable to satisfy the Tribunal that he was qualified for the position. IV. Decision [110] For the foregoing reasons, the Complainant’s complaints of discrimination based on race, national or ethnic origin and family status in contravention of section 7 of the Canadian Human Rights Act, R.S. (1985), c. H‑6, cannot succeed. [111] In his submissions, counsel for the Respondent, citing subsection 50(6) of the Act, asked that the Tribunal order the Complainant to pay the witness fees if the complaint is dismissed. [112] Subsection 50(6) provides: Any person summoned to attend the hearing is entitled in the discretion of the member or panel to receive the same fees and allowances as those paid to persons summoned to attend before the Federal Court. [113] I do not believe that this subsection is intended to enable a party to seek costs. Its objective is to ensure that witnesses who have been summoned can obtain some form of compensation, and nothing more. To grant the Respondent’s request would be to distort the meaning of the provision. Perhaps the Tribunal has the power to award the parties costs under certain circumstances, but this subsection is certainly not the source of that power. Signed by Michel Doucet Tribunal Member Ottawa, Ontario June 21, 2005 Canadian Human Rights Tribunal Parties of Record Tribunal File: T932/5204 Style of Cause: Daniel Kasongo v. Farm Credit Canada Decision of the Tribunal Dated: June 21, 2005 Date and Place of Hearing: January 4 to 7, 2005 Ottawa, Ontario January 21, 2005 Via video conference (Ottawa, Moncton, Regina) Appearances: Daniel Kasongo, for the Complainant No one appearing, for the Canadian Human Rights Commission Roger Lepage, for the Respondent [1] Saskatchewan Francophones refer to themselves as Fransaskois.

2005 CHRT 25

CHRT

Warman v. Winnicki

en

2005-07-11

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7118/index.do

2023-12-01

Warman v. Winnicki Collection Canadian Human Rights Tribunal Date 2005-07-11 Neutral citation 2005 CHRT 25 File number(s) T1021/0205 Decision-maker(s) Jensen, Karen A. Decision type Decision Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE RICHARD WARMAN Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - TOMASZ WINNICKI Respondent RULING MEMBER: Karen A. Jensen 2005 CHRT 25 2005/07/11 [1] Richard Warman filed a complaint on September 7, 2003, with the Canadian Human Rights Commission (the Commission) against Tomasz Winnicki, alleging that Mr. Winnicki communicated or caused to be communicated messages which were likely to expose persons to hatred on the basis of religion. The Commission now seeks to amend the complaint to add the grounds of race, national or ethnic origin and colour. The complainant supports the amendment. [2] In his response to the motion, Mr. Winnicki stated that Mr. Warman and the Commission are persecuting him and that the motion to include the additional grounds of the complaint constitutes further evidence of this persecution. [3] The Tribunal has the discretion to amend a complaint to deal with additional grounds of discrimination and additional allegations provided that the substance of the original complaint is respected and that sufficient notice has been given to the respondent to enable him to properly defend himself (Warman v. Kyburz 2003 CHRT 6, at para 5). [4] I am satisfied that both of these conditions have been met in the present case. The proposed amendment is linked to the substance of the original complaint since the additional grounds relate to material that was allegedly communicated by Mr. Winnicki over the Internet. [5] Moreover, there is nothing before me to indicate that Mr. Winnicki will be prejudiced in any way in the preparation of his defense if leave to amend the complaint is granted. Document disclosure, including the material that raised allegations based on the new grounds, was provided to Mr. Winnicki in April, 2005. In addition, in May, 2005, Mr. Winnicki received notice of the new grounds in the Joint Statement of Particulars and the Notice of Motion to amend the complaint. [6] The hearing in this case is scheduled to begin on August 8, 2005. Therefore, Mr. Winnicki will have had three months to prepare a defense against the complaint based on the new grounds. This is sufficient notice to ensure that Mr. Winnicki is not prejudiced by the amendment. [7] Accordingly, leave is granted to the Canadian Human Rights Commission to amend Mr. Warman's complaint to include the additional grounds of race, national or ethnic origin and colour in the s. 13(1) complaint against Mr. Tomasz Winnicki. The Commission shall have 10 days within which to serve and file an amended complaint form, together with an amended Statement of Particulars and any necessary supplementary disclosure. Signed by Karen A. Jensen OTTAWA, Ontario July 11, 2005 PARTIES OF RECORD TRIBUNAL FILE: T1021/0205 STYLE OF CAUSE: Richard Warman v. Tomasz Winnicki RULING OF THE TRIBUNAL DATED: July 11, 2005 APPEARANCES: Richard Warman On his own behalf Monette Maillet Ikram Warsame On behalf of the Canadian Human Rights Commission Tomasz Winnicki On his own behalf

2005 CHRT 26

CHRT

Brooks v. Department of Fisheries and Oceans

en

2005-07-12

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7121/index.do

2023-12-01

Brooks v. Department of Fisheries and Oceans Collection Canadian Human Rights Tribunal Date 2005-07-12 Neutral citation 2005 CHRT 26 Other citations 2004 CHRT 36 File number(s) T838/8803 Decision-maker(s) Groake, Paul Dr. Decision type Decision Decision status Final Grounds Race Decision Content Between: Cecil Brooks Complainant - and - Canadian Human Rights Commission Commission - and - Department of Fisheries and Oceans Respondent Decision Member: Dr. Paul Groarke Date: July 12, 2005 Citation: 2005 CHRT 26 Table of Contents I. Introduction. II. Basic Principles. A. The Discretion Over Costs is Governed by the Principle of Austerity. B. The Applicable Standard is Fair and Reasonable. III. Methodology. A. The Federal Court Rules Apply. B. Tariff B.. (i). The Tribunal Must Determine What Services Were Necessary and Assess Their Cost C. The Appropriate Column is Column 3. D. Assessment (i). Choice of Counsel (ii). Junior Counsel (iii). Services Before the Referral (iv). Unnecessary Motion. (v). GST. (vi). Total (vii). Disbursements. (viii). Total of Fees, GST and Disbursements. IV. Final Adjustments. A. Statutory Factors. (i). Rule 400(2)(a)- Results. (ii). Rule 400(2)(b)- Quantum.. (iii). Rule 400(c)- Importance and Complexity. (iv). Rule 400(3)(e)- Any Written Offer to Settle. (a). The Law Requires Notice. (b). The First Offer (c). The Second Offer (v). Rule 400(3)(g)- Amount of Work. (vi). Rule 400(3)(h)- Public Interest (a). Hearings Serve the Public Interest (vii). Rule 400(3)(k)- Unnecessary Step. B. Other Factors. V. Ruling. A. Table A - Fees from Tariff B of the Federal Court Rules. B. Table B – Disbursements. C. Table C - Summary I. Introduction [1] The question whether the Tribunal has the jurisdiction to award costs is presently before the Federal Court. It will take some time to settle the legalities of the matter, however. The parties have accordingly asked me to assess the costs in the present case, while the details of the litigation are fresh in the minds of the parties. It appears that there is some financial urgency on the Complainant's side. [2] The parties have agreed upon the methodology and the basic principles that should be followed in conducting an assessment. Since this is the first time that the Tribunal has formally assessed costs, I have tried to limit my comments to the rudiments of the process. [3] Mr. Bagambiire has presented me with a bill of costs, listing the actual fees and disbursements that were charged to his client. The grand total of fees, disbursements and GST that he is seeking under the bill are $372,612. This has become the real issue between the parties on remedy. II. Basic Principles A. The Discretion Over Costs is Governed by the Principle of Austerity [4] As I understand the law, the discretion over costs is governed by the principle of austerity. This is the term used by Mr. Stinson in Kassam v. Canada, [2005] F.C.J. No. 799 at para. 8 (F.C.A.), where he says that an assessment officer should exercise his discretion conservatively, with a view to the sense of austerity that should pervade costs, to preclude prejudice relative to the payer of costs. [5] This is fundamental to the process. The focus of the inquiry in assessing costs is on what the Respondent should pay, rather than what the Complainant should recover. This difference in focus is significant. The Respondent should not be required to pay more than was necessary to prosecute the case. [6] The process of assessing costs has a peculiar character of its own, which relies heavily on the assessor's judgement. Mr. Stinson quotes Lord Justice Russell, who apparently stated that assessment is rough justice, in the sense of being compounded of much sensible approximation. This feeling of impreciseness is probably inherent in the process. B. The Applicable Standard is Fair and Reasonable [7] It will be apparent that some kind of standard is needed, to assess the proper cost of the services that were rendered. The parties have accepted my suggestion that the applicable standard is what is fair and reasonable. The notion of fairness introduces an additional criterion, which reflects the procedural standard under the Canadian Human Rights Act. Fees may be reasonable but not entirely fair. [8] There is caselaw that supports this approach. In Smith v. Ontario (Human Rights Commission), [2005] O.J. No. 2275 (Ont. Sup. Ct.), the Ontario Divisional Court dealt with an award of costs in an appeal from a hearing before the Ontario Human Rights Tribunal. The court recognized, at para. 2, the principle that costs must be reasonable, and fair to the losing party, whose reasonable expectations must be taken into account. The Ontario Court of Appeal affirmed the same standard in Boucher v. Public Accountants Council for the Province of Ontario, [2004] O.J. No. 2634. [9] The purpose of assessing costs is accordingly to determine the fair and reasonable costs of the litigation. The process of assessment should be governed by the same sense of austerity that guides the exercise of the larger discretion. III. Methodology A. The Federal Court Rules Apply [10] The magnitude of the claim in the present case calls for a new means of assessment. In the past, the Tribunal has awarded costs on the basis that they constitute expenses under section 53(2)(e) of the Canadian Human Rights Act. Thus, in Milano v. Triple K Transport Ltd. (2003) CHRT 30, and Premakumar v. Air Canada, No. 2 (26 April 2002), T.D. 03/02 (CHRT), Ms. Mactavish awarded a complainant reasonable legal expenses. In Nkwazi v. Correctional Service Canada, No. 3 (29 March 2001), T.D. 1/01 (CHRT), she awarded reasonable solicitor-client expenses. [11] The costs that were dealt with in these cases were of a different order of magnitude than the costs claimed in the present case. They were therefore more amenable to this analysis. I went a different way in Brown v. Royal Canadian Mounted Police (2004) CHRT 30, where I held that legal fees should not be described as expenses under the Act. This would make the mistake of treating them as disbursements. [12] This is significant because the remedial provisions of the Canadian Human Rights Act contemplate full recovery of the expenses incurred by a successful complainant. This is not appropriate on costs. The notion of reasonableness that applies to disbursements is not the same as the notion that applies to costs. The notion that applies to costs is based on what the Respondent should be required to pay, rather than what the Complainant has spent. [13] This is a more prescriptive standard, which requires some means of assessing the fair and reasonable costs in a given case. Mr. Bagambiire reluctantly agreed that the necessary means of assessment can be found in the Federal Court Rules. These Rules provide a set of principles and a methodology for assessing costs. They also have a Tariff, which contains a list of services that can be claimed. This provides the modus operandi of the assessment process. [14] It makes sense that the Federal Court Rules would apply. Costs are costs. Mr. Brooks is entitled to the same costs as other litigants in the Federal System. There is no premium for filing a complaint under the Canadian Human Rights Act. Indeed, I was informed that the Complainant has a constitutional action proceeding in the Federal Court. I see no reason why he should do better here. [15] The parties agreed that it may be necessary to modify the Tariff to reflect any differences in the procedures before the Tribunal. As Mr. Bagambiire put it, the Tariff should not be a strait jacket. I think a certain amount of improvisation is an inevitable part of the process. There is also room for adjustments, at the beginning and end of the process. B. Tariff B [16] The Federal Court Rules contain two tariffs. The first, Tariff A, deals with court fees. The parties did not refer to it. There is also a second Tariff, Tariff B, which deals with counsel fees and disbursements allowable on assessment. This Tariff contains a table assigning a range of units that may be awarded for the services covered by the Tariff. The parties agreed that this provides the basic methodology for any assessment by the Tribunal. (i) The Tribunal Must Determine What Services Were Necessary and Assess Their Cost [17] The task of a Tribunal applying the Tariff is twofold. The Tribunal must determine what services were necessary. In most cases, this is a relatively simple task. The Complainant simply submits a bill of costs, setting out the services that were rendered, in accordance with the Tariff. [18] The word necessary should not be interpreted too strictly in this context. There may be different views as to what is necessary and the Complainant and his counsel are entitled to exercise a certain judgement in the matter. [19] The Tribunal must then determine the cost of these services under the applicable standard. This requires some rating of the value to be attributed to different services. This is supplied by the Tariff, supplemented by the submissions of counsel and the experience of the Tribunal. It is for the party seeking costs to establish the necessity and value of the services. C. The Appropriate Column is Column 3 [20] The first step under Tariff B is to decide on the column that should be used in the assessment. Mr. McCrossin submitted that the appropriate column is column 3. This is the default column under Rule 407. Mr. Bagambiire argued for costs under column 5, the highest column. [21] The issue is whether the Complainant is entitled to party-and-party or solicitor-client costs. The Respondent cited the Federal Court of Appeal in Banca Nazionale Del Lavoro of Canada Ltd. v. Lee-Shanok, [1988], F.C.J. No. 594 at para. 27, where it said: ... a judge must be `extremely cautious in departing from the general rule' that only party and party costs should be allowed a successful litigant .... An extraordinary award of this kind [i.e., of solicitor-client costs] ought only to be made in circumstances that are clearly exceptional, as would be the case where an adjudicator wished thereby to mark his disapproval of a party's conduct in a proceeding. I see nothing that could be characterized as exceptional in this context. [22] The hearing was occasionally turbulent. The parties had strong views, and exchanged emotional and even angry allegations. This is a regular part of the human rights process, however, which often raises provocative issues for the parties. I do not see anything that would take the present case out of the usual range of cases that come before the Tribunal. [23] I have already said that there is no premium for filing a human rights complaint. I nevertheless think that a certain premium may apply, in cases that raise social, historical, or institutional issues that need to be addressed. I think it is better to let other Tribunals decide the matter. The present case falls below whatever threshold may apply, in such cases. [24] The Respondent should not be penalized for contesting a case that it legitimately disputes. The appropriate column is clearly column 3. There was a real dispute between the parties. There were successes on both sides. D. Assessment [25] The parties agreed to proceed through Tariff B, item by item, in a relatively informal manner. I gave each side an opportunity to make submissions and then awarded a specific number of units for the service. The value of each unit at the time of the assessment hearing was 110 dollars. This value changed to 120 dollars on April 1, 2005. [26] The parties have taken a different view as to which value should apply to the present award. Mr. Bagambiire submits that the matter was remained unresolved as of April 1, when the unit value was adjusted. He has referred me to the decision of the Federal Court in AIC Ltd. v. Infinity Investment Counsel Ltd., [1998] F.C.J. No. 904, where Justice Rothstein held that a new Rule relating to costs should apply to an award of costs that takes place after the Rule comes into effect. [27] The parties essentially agree that the issue is whether the rights under the award have already accrued. Ms. Cameron, for the Respondent, argues that the line by line costs were fixed during the assessment, which took place before April 1. The matters that were dealt with after April 1 related to legal issues and the global question whether I should exercise the discretion under the rules to increase or decrease the assessed costs. [28] I think both sides would agree that the number of units to be awarded for each service was fixed at the time of the assessment hearing. There were submissions and a decision from the Tribunal on each item, and other than errors or discrepancies, I would think that the jurisdiction of the Tribunal to assess these costs has been exhausted. This does not mean that the monetary value of the award has been fixed, however. [29] The real issue on the monetary figure is collection. The Complainant's right to collect a particular unit value, and a specific monetary entitlement, does not accrue until the ruling has been issued. I think that this is the effective date. The idea behind the Tariff is to establish the value of past services, at the time that the costs become due. This value must be assessed at the standard that exists on the day the ruling has been signed. [30] There is an additional problem. I do not see how a person conducting an assessment can conduct one part of the assessment under one unit value, and complete it under another. If there is a certain element of good fortune in this, which must be awarded to one side or the other, I think it must go to the Complainant. The Respondent already has the benefit of the principle of austerity. I have accordingly readjusted the figures under Tarriff B to reflect a unit value of 120 dollars. [31] The Tariff gives the person assessing the costs a discretion to determine the number of units that should be awarded for each service. The assessor may, for example, award 3 to 7 units for the preparation and filing of a contested motion. The parties agreed that there were four distinct matters, all argued separately, which can be conveniently described as contested motions. After hearing from the parties, I accordingly awarded from 3 to 5 units for each of these matters. [32] The Registry Officer prepared a table, as we went through the assessment, containing a list of the units assigned for each service. After we had gone through the costs, a similar procedure was followed for the disbursements. There is a list of general factors in Rule 420 of the Federal Court Rules, which may be considered in assessing costs. These kinds of factors naturally come into play, in proceeding through the exercise. (i) Choice of Counsel [33] The major issues that arose in going through the assessment deserve further comment. The first is that the Complainant retained counsel outside Halifax. The Respondent argued that any costs that flow from this decision should be borne by the Complainant. [34] The matter is more complicated than it appears. As it turns out, the Commission's investigator was in Toronto. Mr. Bagambiire was originally hired because he was in the same city. There were extensive discussions with respect to the details of the file. As a result of these discussions, Mr. Bagambiire was the logical choice, when it came to choosing counsel for the hearing. [35] There is more, however. Mr. Bagambiire comes from the Halifax area. He is known as an advocate in the black community and has a particular expertise in human rights. It was apparent that Mr. Brooks feels a more general weight of prejudice, which goes beyond the confines of the present complaint. The evidence before me suggested that there has been a bitter divide between the black and white communities in the Halifax area. [36] I do not want to suggest that members of minorities are entitled as a matter of course to choose lawyers from their own community. I nevertheless think that this is one of those areas where special considerations may apply in the human rights process. Mr. Brooks has had psychological issues in the past. I think he took some legitimate comfort from the fact that his senior counsel could represent him, with all the insight and knowledge that come from living one's life as a member of the same minority. (ii) Junior Counsel [37] The case was hard fought on both sides. The Respondent was served by two counsel, who had the assistance of the representatives and officers in the department. In the circumstances, I think Mr. Brooks was entitled to a second lawyer. I do not see why he needed another lawyer from Toronto. I accordingly allowed the costs for junior counsel but disallowed the disbursements for his travel. (iii) Services Before the Referral [38] I have to say that the Respondent misstates the situation when it says, in its written submissions, that I have assessed costs in favour of Complainant's counsel for the Commission stage of the complaint. Counsel may be responding to the fact that I allowed some recovery for the services that Mr. Bagambiire provided at a mediation in Halifax. This was a mediation held by the Tribunal, however, after the case was referred, and should be construed as part of the inquiry process. [39] The Tribunal's jurisdiction is limited to its own process. Any award for costs should be restricted to the costs that were incurred in prosecuting the case before the Tribunal. The costs that I have allowed are basically for services rendered by counsel for the Complainant in the hearing process. The attached tables speak for themselves. [40] The matter is not capable of precise limits. The Complainant is also entitled to something, on the basis that some of the services provided before the matter was referred can be construed as a natural and inevitable part of the Tribunal process. I have accordingly allowed a few disbursements for the services before the Commission. I have also taken this into account in making the final adjustments to the global figure. [41] The caselaw recognizes that a complainant is entitled to remuneration for consulting a lawyer and initiating the discussions with the Commission, even if costs are not awarded. This only goes so far. In the immediate case, there was an extensive and prolonged dialogue between counsel for the Complainant and the Commission. This kind of service goes well beyond the kinds of costs that can be recovered from the Respondent. (iv) Unnecessary Motion [42] The Respondent also took the position that a motion to clarify the decision was unnecessary. Although my sympathies are primarily with the Respondent on the issue, I think the Complainant was entitled to recover something for the motion. I accordingly awarded the minimum number of units for the motion. (v) GST [43] The total fees are $70,800. There was a dispute as to whether the Complainant was entitled to GST on the costs and disbursements. I held that these taxes are an inevitable cost, in the nature of disbursements, and should be borne by the Respondent. They should not be used to artificially reduce the Complainant's recovery, which is well below his actual costs. (vi) Total [44] The table of assessed costs prepared by the officer in the case is attached. The total of assessed costs, with GST, is $75,756. (vii) Disbursements [45] The parties then proceeded through the Complainant's list of disbursements, item by item, in much the same manner. There were general submissions from the Respondent that the disbursements were excessive. There were also submissions on an item by item basis. [46] I disallowed most of the disbursements related to services that were provided before the complaint was referred. There were exceptions. The main item in this regard was a rather general claim for: Copying, fax, courier, QL & misc. expenses, 2001 to present: $13,643.62. [47] After hearing submissions from the parties, I allowed $9,000 for this item. This allows some recovery of the expenses before the Commission. [48] There was also a dispute about two expert's reports. The first was for an actuarial report. This report was prepared for settlement purposes, before the referral. I do not think it would be fair to ask the Respondent to cover the costs associated with this report, since it was not needed for the hearing. [49] There was a second report from Dr. Henry, an expert in race relations. The Complainant was within his rights to purchase this kind of report, which is commonly relied upon in cases of discrimination. The Respondent objected that the report was not a proper expert's report and was ruled inadmissible as a result. There is merit in this submission. After hearing from both sides, I allowed $1,800 for the preparation of this report, a reduction of $1,000. [50] The Complainant claimed $8,997.63 for transcripts of that part of the hearing that dealt with liability. Mr. Bagambiire argued that the hearing took place over a long period of time. He accordingly needed the transcripts to prepare his final submissions. I allowed $5,350, including GST. [51] Mr. Bagambiire said that it was impossible to provide a line by line accounting of long distance charges. I accordingly allowed an additional charge, without receipts, for $300. [52] The disbursements claimed by Mr. Bagambiire are included in his original bill of costs. The total of assessed disbursements is $22,590. Since the GST was already included in the individual disbursements, there was no adjustment for the GST. The table of assessed disbursements prepared by the officer in the case is attached. (viii) Total of Fees, GST and Disbursements [53] The total of assessed fees, GST, and disbursements is $98,346. IV. Final Adjustments [54] The parties agreed that the Tribunal should make final adjustments, after the fees allowable under the Tariff have been calculated. The Respondent submitted that the Tribunal must not fetter its discretion by simply deferring to the amount calculated under the Tariff. The assessing officer has a discretion and must exercise it. [55] I have rejected some of the submissions from the Complainant. Mr. Bagambiire argued, for example, that the costs should be increased to reflect the fact that the Federal Court Tariff no longer captures the real cost of legal services in the marketplace. This is a common complaint, with any Tariff, and must be dealt with in another forum. [56] Mr. Bagambiire also argued that many of the services that he rendered are not covered by the Tariff. My response is that Mr. Brooks is generally entitled to his costs for the inquiry. These are covered by the Tariff. If he wants to obtain extra services, that is his prerogative. But he cannot expect the Respondent to pay for them. [57] I would go further. If the Complainant wanted to recover additional costs, I think he was obliged to justify them on a case by case basis. Item 27 in Tariff B allows a party to claim costs for such other services as may be allowed by the assessment officer or ordered by the Court. This does not prevent him from asking for a more general increase on the basis that the file required an unusual amount of work. A. Statutory Factors [58] The list of factors in Rule 420 move into the foreground, in making the final adjustments. (i) Rule 400(2)(a)- Results [59] Rule 420(a) states that a court may consider the result of the proceeding. The Respondent argues that Mr. Brooks only succeeded in proving one of the three allegations before me. He did not obtain employment. He did not obtain the kind of compensation that he was seeking. It follows that he was largely unsuccessful. [60] Mr. Bagambiire looked at the matter in a different way. He stated that Mr. Brooks was seeking a finding of discrimination. It follows that he was a hundred percent successful. There is something to be said for both views. I prefer the middle path. Mr. Brooks was successful, but the results were mixed. [61] There is a good deal of hindsight in the Respondent's submissions. Although there is room for debate on the matter, I think both sides were entitled to litigate the full range of issues before me. The issue that arises in considering the results of the litigation is whether it was reasonable for the Complainant to prosecute the case, not whether he succeeded. [62] At the end of the day, the most important fact in this context is the finding that the Respondent discriminated against Mr. Brooks. The significance of this result should not be discounted. The Complainant established that the competition that was held in 1992 was manifestly unfair. (ii) Rule 400(2)(b)- Quantum [63] Rule 400(2)(b) states that a court may consider the amounts claimed and the amounts recovered. The Respondent asserted that there was a disparity between the magnitude of the claim and the amount recovered. [64] There are two sides to this. I cannot accept the Respondent's submission in the context of the award for pain and suffering. The modest nature of the award that was given under this head of compensation for pain and suffering was based on statutory limits. I think it is clear that, without the statutory limit, Mr. Brooks would have received much more. [65] The Respondent's submission is well-founded, however, with respect to the claim for lost income. It is clear that Mr. Brooks was seeking substantial damages for lost income. He did not obtain these. This is a factor, on costs. (iii) Rule 400(c)- Importance and Complexity [66] Rule 420(c) refers to the importance and complexity of the issues. I have to say, in all candour, that in my opinion counsel made the facts more complicated than they had to be. I am speaking in particular of the Complainant's side. [67] From a legal perspective, the case was not particularly complex. It nevertheless raised some difficult probative issues, which required careful analysis of the law. There were a number of side issues. My own view is that the importance of the case lies in the weight to be accorded to the perceptions of various witnesses. [68] The issues raised on costs are also significant. This is new territory. (iv) Rule 400(3)(e)- Any Written Offer to Settle [69] Rule 400(3)(e) states that a court may consider any written offer to settle. The Respondent tendered two letters under this rule, which were marked for identification. These letters contain offers to settle the complaint for a greater sum of money than the Complainant received in the Tribunal process. [70] Rule 400(3)(e) refers to any written offer to settle. The Respondent underscores the word any. There may be a difference of interpretation here. I do not think, for myself, that the word any in Rule 400(3)(e) was ever intended to supplant the common law on without prejudice communications. [71] The Respondent has also given me the decision of the Federal Court of Appeal in Apotex Inc. v. Syntex Pharmaceuticals International Ltd., [2001] F.C.J. No. 727. This decision merely says that a written offer cannot be introduced on the question costs unless it contains a clear and unequivocal offer. A conditional offer does not meet the requirements of the Rule. (a) The Law Requires Notice [72] The caselaw from the Complainant establishes that a without prejudice offer of settlement is only admissible in assessing costs if the party making the offer has given notice that it intends to introduce the offer on the issue of costs. Orkin adopts the same position. The leading case in Canada appears to be Graham v. Dillon (1986), 5 B.C.L.R. (2d) 218 (B.C.S.C.). [73] It is important to be clear on terminology. In its written submissions, the Respondent discusses the meaning of the term without prejudice: The term [without prejudice] conveys that the sending party is writing the letter without prejudice to its position in the litigation, and in particular, without an admission that could be used against it to establish liability. I think this is too restrictive. [74] The concept of without prejudice simply means that a party preparing a document has provided it, for settlement purposes, on the understanding that the document will not be used against it. A party may specify that a document is without prejudice for one purpose and with prejudice for another. A letter may be without prejudice on the substantive question of liability, for example, and with prejudice on remedy or costs. [75] There are two competing legal principles that come into play in this context. The first is that the parties should be given the freedom to negotiate a settlement, without fear that their negotiations will be used against them. The second is that a party who rejects a reasonable offer is not entitled to recover the full costs of the litigation. The Respondent submits that the latter principle is one of the primary considerations in assessing costs. [76] It is the first principle that is primary, however. The second principle merely allows a party to place limits on the without prejudice nature of the document. It is ultimately a question of waiver. A party that intends to introduce these kinds of documents, on costs, needs to send a clear message to the other side that it waives the protections afforded to without prejudice documents on the narrow question of costs. The waiver must be express. [77] It is wrong to think that the law allows the introduction of a without prejudice offer into evidence, in spite of the fact that it is without prejudice. There are merely different cases. The kinds of offers that are contemplated in the caselaw are without prejudice to the position taken by the party on the main issue. This does not prevent them from being with prejudice on the question of costs. (b) The First Offer [78] The first letter can be dealt with summarily. I agree with the Complainant that Rule 400(3)(e) envisages a complete offer. The Apotex decision would support such a position. [79] The first letter tendered by the Respondent does not meet this requirement. It refers to other communications and is inconclusive. It also fails to meet the requirements of notice. The letter is inadmissible. (c) The Second Offer [80] The second letter raises more serious concerns. It contains a formal offer, in the following terms: Without any admission of liability whatsoever, our client hereby offers to settle this matter for the all-inclusive sum of $125,000. [81] This may be rhetorical excess. The Respondent is willing to pay the Complainant the sum, but without any acknowledgement of liability whatsoever. This assertion cannot be restricted to the litigation. It applies to remedy and costs, as well as the substantive question of liability. [82] The second offer does not qualify as an offer of settlement within the meaning of Rule 400. It is one thing for the Respondent to say that the letter is without prejudice to its position in the litigation and another thing to say that it is without prejudice, simpliciter. This is tantamount to saying that it does not exist, for the purposes of the litigation. [83] I cannot see how a statement made without any prejudice whatsoever meets the requirements of Rule 400. The reference to any written offer in the Rule is to written offers made with prejudice, at least on the issue of costs. It is easy to forget the point of the rule, which is that a document written with prejudice is not protected by the law. If the Respondent is entitled to introduce the offer on costs, it is only because the other side is entitled to introduce it. [84] I think this is revealing. It may be to the Respondent's advantage to introduce the second letter, in the present circumstances. But the case could have gone some other way. If it was the Complainant that had applied to introduce the letter, there is little doubt that the Respondent would be within its rights to object, on the basis that the letter was written without any prejudice whatsoever. [85] The Respondent cannot have it both ways. Either it has waived the protections afforded to without prejudice documents, or it has not. I think it is clear that the Respondent has not done so. The second letter is therefore inadmissible. It follows that I have no evidence before me of any offer to settle that may be considered under Rule 400(3)(e). 1. The Complainant was Entitled to Reject the Second Offer [86] I should add, if only for the sake of clarity, that I do not agree with the suggestion that the Complainant should have accepted the second offer. It is not for me to say. [87] There is a point of principle here, however. The rights protected by the Canadian Human Rights Act are fundamental. A finding that these rights have been infringed has a symbolic value that extends beyond the financial award that a successful complainant may obtain. It cannot be said, without an admission of liability, that Mr. Brooks obtained less in the litigation than he would have obtained by accepting the settlement. [88] Human rights litigation has its private aspects. It is not private litigation, however. There is more than compensation to deal with, in the process. A Respondent cannot escape a finding of discrimination and the costs that go with such a finding, merely by offering a complainant the maximum that is available under the Act. (v) Rule 400(3)(g)- Amount of Work [89] Rule 400(3)(g) states that a court may consider the amount of work. Mr. Bagambiire says that the work on the file was unusually onerous, as a result of the complexities in the employment records. He attributes some of this to the Respondent's failure to disclose all of the relevant records. [90] This cuts both ways, however, since counsel for the Complainant went further than was necessary, in their examinations on the employment records. [91] The Respondent for its part argues that the Complainant was overly litigious. Although I have concerns about the attitude adopted by counsel, the parties were entitled to insist on their rights. Litigation is an exhausting game and the ordinary public does not appreciate the effort that goes into taking a complaint to a hearing. [92] I do not accept that the present case called for any extraordinary efforts on the part of counsel, on either side. I nevertheless accept that there was a good deal of work in marshalling the facts. Some of this can be attributed to the long delay in prosecuting the case. (vi) Rule 400(3)(h)- Public Interest [93] Rule 400(3)(h) states that a court may consider whether the public interest in having the proceeding litigated justifies a particular award of costs. This is an area where special considerations apply in the human rights process. [94] I say this because the human rights process is not private litigation. It has a more fundamental character. The best analogy in the present case is probably with a constitutional tort: the remedy may be a private remedy, but the cause of action has its origins in the broader public interest. This component in the process is primary, even in a case where a complaint concerns a dispute between private parties. (a) Hearings Serve the Public Interest [95] The point in the present context is that hearings serve the public interest. The human rights process was designed to bring the problem of discrimination into the open and subject it to public scrutiny. The public policy enshrined in human rights legislation places real value in the fact that a complaint has been heard. This is all the more true when the complaint is substantiated. [96] The human rights process has larger aims than the ordinary legal process. These aims include education and the symbolic redress of long standing social or historical grievances. I think that hearings also give individuals an opportunity to express their frustration and disappointment in the face of prejudice and discrimination. These aspects of a hearing are difficult to assess and are not translatable, in strict financial terms. [97] The filing of a complaint and the holding of an inquiry provides a process by which society determines what is appropriate and proper, in the employment context. The public benefits from litigation, which helps in the development of the body of law and principle that is needed to resolve social conflicts. This promotes justice and contributes to the common good. [98] Although the present case dealt with a complaint from a private party, it dealt with issues that went well beyond the strict parameters of the complaint. I believe that Mr. Brooks' complaint had, in the context of his community, a certain historical significance. This factor must weigh on his side, in the final calculation of costs. (vii) Rule 400(3)(k)- Unnecessary Step [99] Rule 400(3)(k)(i) states that a court may consider whether any step in the proceeding was unnecessary. I have already said that I have some sympathy with the Respondent's position that the Complainant's request for a clarification of my decision was unnecessary. This is not a significant factor in the final adjustments. There is a more general question with respect to the attitude exhibited on the Complainant's side, which was stubborn and bellicose. This contributed to the length and difficulty of the hearing. B. Other Factors [100] I have considered the factors set out above. Some of these factors militate in favour of an increase in the final costs; some in favour of a reduction. The primary consideration in deciding the final figure, however, is that Mr. Brooks has obtained a finding of discrimination. In my view, this was all that was realistically available to him. [101] The job competition that gave rise to the finding of discrimination was held in 1992. It took a long time for the situation to sort itself out. Mr. Brooks apparently had a break-down in the process. This helps to explain why the complaint was not filed until August of 1997. [102] There were additional delays at the Commission. The complaint was not referred to the Tribunal until July of 2003. It is now 2005. There is no point in laying blame. It was already late in the game, by the time that Mr. Brooks filed the complaint. The reality is that the complaint came before the Tribunal at such a late stage that it was impossible to rectify the problems in the process. [103] Nothing can be done about what happened in 1992. The real solution was to hold another competition. This would have had real consequences for the participants in the process. The winning candidates would have lost their positions. It seems plain that Lisa Howe would have won one of the positions. She would not have had to wait 14 years for a permanent position. Mr. Brooks would have ranked higher in the eligibility list. [104] There would have been other benefits on the policy side. Education is one of the goals of the human rights process. A decision to hold a new competition, under the watchful eye of the Canadian Human Rights Commission, would have alerted managers and staff to the issues in the area. It would inevitably have had a ripple effect in improving the hiring and employment practices of the department. [105] All of these benefits were lost. The Tribunal cannot order a new competition thirteen years after the original competition was held. The practicalities of the situation do not permit it. There are equitable issues that prevent it. This takes me to the litigation. My reading of the current situation is that Mr. Brooks feels that the Respondent got away with something. There is much to be said for such a view. [106] Mr. Brooks can be faulted for overstating his chances of success in a fair competition. I have made it clear that there is no reason to believe that he would have won a second competition. Having said that, I think that his feelings are justified. They deserve affirmation. The entire process was manipulated by Mr. Savoury. The winning candidates were not entitled to their positions. [107] It is too late to order a new competition. The question on costs is whether Mr. Brooks was justified in pursuing the litigation so long after the fact, when the natural remedy in the case was unavailable. I think the answer must be yes. The only correction that was possible, it seems to me, was a legal finding that the competition was unfair. This at least corrects the public record and establishes what was right. [108] One of the purposes of the adjudicative process is to declare the rights of the parties. This serves an important purpose, even when it is done long after the fact, at a time when more concrete remedies are no longer available. I think the importance of this exercise, in the present circumstances, is enough to justify the litigation. This should be reflected in the costs. [109] There is no perfection here. I think the posture adopted by the Complainant has its willful side. It was evident that Mr. Brooks was unhappy with my decision in the case and, in my estimation, the parties have adopted an adversarial approach. This was apparent in the contest over costs and the correspondence between counsel. There are still proceedings in the Federal Court, which apparently concern the more systemic aspects of the matter. [110] It has been said that there is a therapeutic element in the inquiry process, which distinguishes it from the process in the civil courts. This has a role to play in restoring the dignity of both sides and promoting harmonious relationships between employers and their employees. I regret to say, in the immediate case, that I see none of the reconciliation that one would hope for in such a process. V. Ruling [111] I think the Complainant is entitled to an increase in the global figure. The assessed costs, all inclusive, will be set at one hundred and five thousand dollars ($105,000). This increase in the total reflects an increase in the fees. I consider it a modest increase, in keeping with the austerity that characterizes the assessment process. There is no reason to increase or discount the disbursements. [112] Since this is the first time the Tribunal has done an assessment, and the issue of the Tribunal's jurisdiction is in the Federal Court, I think the Respondent is entitled to some time to consider its options in the matter. The costs are therefore payable within sixty days of the date of this order. [113] There is one incidental matter. The general practice of the Tribunal is to provide simple interest on financial awards. Simple interest will accordingly be payable on the full amount of the costs. This interest will be calculated on a yearly basis at a rate equivalent to the Bank Rate (monthly series) set by the Bank of Canada. It will accumulate from the day after the sixty days have elapsed. I will reserve my jurisdiction to deal with any outstanding matters for two weeks. Signed by Dr. Paul Groarke Tribunal Member Ottawa, Ontario July 12, 2005 Table A- Fees from Tariff B of the Federal Court Rules Units A. Originating Documents and Other Pleadings 1. Preparation and filing of originating documents, other than a notice of appeal to the Court of Appeal, and application records Statement of Particulars 6 B. Motions 5. Preparation and filing of a contested motion, including materials and responses thereto. Expert’s report 4 Clarification of Decision 3 Jurisdiction to award cost 3 Admissibility of purported letter of offer 5 6. Appearance on a motion, per hour Appearances on Motion re Expert’s report: 1 hour 2 Appearances on Motion re Clarification of Decision: 1 hour 2 C. Discovery and Examinations 7. Discovery of documents, including listing, affidavit and inspection. Disclosure 5 D. Pre-Trial and Pre-Hearing Procedures 13. Counsel fee: a) Preparation for trial or hearing, whether or not the trial or hearing proceeds, including correspondence, preparation of witnesses, issuance of subpoenas and other services not otherwise particularized in this Tariff; and General preparation for Tribunal 5 b) Preparation for trial or hearing, per day in Court after the first day. Daily Preparation 18 days at 3 units a day 54 14. Counsel fee: a) To first counsel, per hour in Court; and Counsel fee 5.5 hour/day x 19 days at 3 units 314 b) To second counsel, where Court directs, 50% of the amount calculated under paragraph (a). Fees for second Counsel 50% of 14 a) 157 15. Preparation and filing of written argument, where requested or permitted by the Court Preparation of final arguments 5 G. Miscellaneous 24. Travel by counsel to attend a trial, hearing, motion, examination or analogous procedure, at the discretion of the Court. By Counsel to attend hearing 5 25. Services after judgment not otherwise specified Services after judgment not otherwise specified 1 26. Assessment of costs Assessment of costs 6 27. Such other services as may be allowed by the assessment officer or ordered by the Court 27.1 Communications and correspondence with Commission 3 27.2 Attendance at Tribunal Mediation 3 27.3 Preparation of Briefs for Mediation 2 27.4 Travel for Mediation 5 Table B - Disbursements Requested Allowed Air fare for 2, Toronto – Halifax return (re: conciliation meeting October 2002) $998 $0 Hotel expenses for two (re: conciliation meeting October 2002) $1,069.48 $0 Air fare for 2, Toronto – Halifax return (re: mediation meeting December 2003) $763.62 $380 Hotel expenses for 2 (re: mediation meeting December 2003) $620.69 $250 Air travel / hotel expenses / Flaherty, March 11, 2004 (interview witnesses) $367.90 $0 Ground travel Steven Flaherty, March 11, 2004 $130.02 $0 One way air fare for 2, Toronto – Halifax, March 20, 2004 (re: hearing) $593.94 $290 Ground travel, Toronto – Halifax, March 20, 2004 $30 $20 One way air travel for 2, Halifax – Toronto, April 2004 $323.90 $160 Shipping charges (files to Toronto from Halifax, April 01, 2004) $79.72 $80 Hotel expenses for 2, March 20 to 31, 2004 $3,446.57 $1,950 Return air travel for 2, June 6 to 15, 2004 $801.21 $400 Ground travel, June 6 to 15, 2004 $41 $30 Hotel expenses for two, June 6 to 15, 2004 $2,860.24 $1,370 Shipping charges (files to and from Halifax, June 6 to 15, 2004) $177.44 $170 Davies Bagambiire air fare to Halifax, July 2004 $493.22 $490 Davies Bagambiire hotel expenses, July 2004 $551.34 $550 Steven Flaherty air fare, ground travel, etc, July 2004 $439.72 $0 Charges for transcripts for hearing on liability $8,997.63 $5,350 Copying, fax, courier, QL & misc. expenses, 2001 to present $13,643.62 $9,000 Expert reports (Actuary: $3,290.25 – Dr. Henry: $2,800.00) $6,090.25 $1,800 Long distance calls $300 Total $42,519.51 $22,590 Table C – Summary Legal Fees Total Number of Units 590 Unit Value $120 Total Number of Units x Unit Value $70,800 GST $4,956 Legal Fees, with GST $75,756 Disbursements $22,590 Total of Fees and disbursements $98,346 Final Adjustment $6,654 Total of Fees and Disbursements, with increase $105,000 Canadian Human Rights Tribunal Parties of Record Tribunal File: T838/8803 Style of Cause: Cecil Brooks v. Department of Fisheries and Oceans Decision of the Tribunal Dated: July 12, 2005 Date and Place of Hearing: March 10-11, 2005 Ottawa, Ontario Appearances: Davies Bagambiire and Stephen Flaherty, for the Complainant No one appearing, for the Canadian Human Rights Commission Scott McCrossin and Melissa Cameron, for the Respondent References: 2004 CHRT 36 December 3, 2003

2005 CHRT 27

CHRT

Filgueira v. Garfield Container Transport Inc.

en

2005-07-20

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7120/index.do

2023-12-01

Filgueira v. Garfield Container Transport Inc. Collection Canadian Human Rights Tribunal Date 2005-07-20 Neutral citation 2005 CHRT 27 File number(s) T952/7204 Decision-maker(s) Groake, Paul Decision type Decision Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE RONALDO FILGUEIRA Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - GARFIELD CONTAINER TRANSPORT INC. Respondent RULING MEMBER: Dr. Paul Groarke 2005 CHRT 27 2005/07/20 I. Introduction II. The meaning of the word counsel III. The right to be represented by an agent IV. An agent has no independent status I. INTRODUCTION [1] Section 50(1) of the Canadian Human Rights Act states that the Tribunal shall give all parties a full and ample opportunity in person or through counsel, to appear at the inquiry, present evidence and make representations. The following ruling deals with the question of whether a lay person can appear as counsel for the Complainant. [2] Ms. Rubio appears for the Complainant. She is not a lawyer. She has some training as a paralegal and has apparently appeared in the criminal courts, presumably on summary conviction matters. Ms. Rubio is fluent in Spanish, the Complainant's primary language. She has represented him throughout the course of his complaint. [3] I want to be clear. The question is not whether Ms. Rubio can appear on behalf of the Complainant. The question is whether she can appear as counsel. The Respondent has informed the Tribunal, in writing and on the record, that it takes no position on the question. The Canadian Human Rights Commission submits that the Respondent has waived its right to object to her appearance. The question is therefore moot. [4] The problem is that the answer to the question before me may have a bearing on other questions that arise in the hearing. It is therefore necessary to deal with it. II. The meaning of the word counsel [5] My understanding of the word counsel in a legal context has always been that it refers to a lawyer. This is certainly the general usage in the courts. The word might be used, by analogy, to refer to someone who provides the same services as a lawyer. But that is a descriptive use and not a permissive one. [6] The French version of the Canadian Human Rights Act confirms the English usage. Section 50(1) states: Le membre instructeur, après avis conforme à la Commission, aux parties et, à son appréciation, à tout intéressé, instruit la plainte pour laquelle il a été désigné; il donne à ceux-ci la possibilité pleine et entière de comparaître et de présenter, en personne ou par l'intermédiaire d'un avocat, des éléments de preuve ainsi que leurs observations. I think the meaning of the word avocat in the subsection is plain. The parties may present their cases in person, or through a lawyer. [7] I say this in spite of the fact that I have been directed to a subsidiary definition of avocat in Le Robert Micro, which goes further. This merely suggests that the word may be used in a figurative sense, like the word counsel, to refer to someone who performs the function of a lawyer. One could just as easily say that Ms. Rubio acted as Mr. Filgueira's lawyer in his dealings with the Commission. This is a metaphorical use of the word. It does not make her a lawyer. It does not give her the right to appear in those circumstances where the legislation restricts that right to lawyers. [8] Ms. Rubio suggested that the decision of the Federal Court of Appeal in Olvarria v. Minister of Manpower and Immigration (1973), 41 D.L.R. (3d) 472 (F.C.A.) went in her favour. I cannot agree. The Court in Olvarria held that the word counsel in section 3 of the Immigration Act referred to a lawyer. The French text of section 3 referred to un avocat. [9] The Court then turned to the Immigration Inquiries Regulations, SOR/67 - 621, where the word was apparently used in a broader sense. The French text of the Regulations was different than the Act and rendered the word counsel as un avocat ou autre conseiller. The Court extended the meaning of the English word in this context on the basis that the French version of the Regulations referred unambiguously to both a lawyer and an adviser. This is a matter of respecting the French text. [10] The decision in Olvarria stands for the proposition that the meaning of counsel may be extended in those circumstances where the French text demonstrates that the word is being used in a figurative sense, to refer to those who provide the services of a lawyer. That is not the situation before me. The French text of s. 50(1) of the Canadian Human Rights Act, like the Immigration Act, refers to un avocat. As the Court of Appeal in Olvarria recognized, the French usage reinforces and indeed restricts the ordinary meaning of the English term. The word counsel in s. 50(1) refers to a lawyer. III. The right to be represented by an agent [11] This does not mean that Ms. Rubio cannot appear. There are other possibilities. The decision of the Divisional Court in Re Men's Clothing Manufacturer's Association et al. and Arthurs et al. (1979), 26 O.R. (2d) 20 (H.C.J.), recognizes that there is a common law right to be represented by an agent, quite distinct from any right to counsel. [12] The decision of the New Brunswick Court of Appeal in Thomas v. Association of New Brunswick Registered Nursing Assistants (2003), 230 D.L.R. (4th) 337 discusses the law relating to agents. At para. 25, Robertson J.A. holds; In summary, at common law, persons appearing before adjudicative tribunals posess the right to be represented by an agent of their choosing. This right exists independently of any right to counsel. [13] There are many reasons for an agent to appear. At para. 21, the Court says: An intelligent lay person may be able to define issues and articulate responses more easily than the party to the proceedings. Alternatively, the agent's presence may be for the sole purpose of lending moral support or to assist a principal with a physical or mental handicap. In these circumstances, the lay representative's participation may be countenanced. I think this kind of reasoning extends to someone who has difficulty in the official languages of the Tribunal. [14] The nature of the business that comes before the Human Rights Tribunal adds to the significance of these kinds of observations in the present context. It seems to me that there are situations where the use of an agent is an inevitable part of the human rights process. I am thinking of cases where a complainant suffers from a psychological or physical condition that makes it difficult and perhaps impossible to appear without the assistance of an agent. [15] The Tribunal nevertheless remains the master of its own process. As the New Brunswick Court of Appeal says, in Thomas, at para. 25: . the right is not absolute. Tribunals retain a residual discretion to limit participation to those persons that the tribunal believes will facilitate, rather than hinder, the adjudicative process. The Court remarks in an earlier passage, at para. 21, that the participation of a lay person in complex legal cases may only confuse matters further. A Tribunal accordingly retains the discretion . to exclude or to define the extent of any agent's participation at any stage of the proceedings. [16] I think all of this helps to explain the significance of s. 50(1) of the Canadian Human Rights Act, which recognizes the right to counsel. Under the subsection, a party is entitled to conduct its case through a lawyer. A lawyer who is retained by a party appears as of right. An agent appears only with the permission of the Tribunal. There are obvious reasons for this. [17] In my view, Mr. Filgueira is entitled to an agent. He nevertheless has an obligation to satisfy the Tribunal, if the Tribunal deems it necessary, that the agent who represents him is in a position to facilitate the process. There are no concerns in the present case. I am satisfied that Ms. Rubio should be allowed to appear for Mr. Filgueira. She has the advantage of speaking his language; she has some training in the law; and she has a thorough knowledge of the case. I think it is apparent that her appearance will protect the fairness, efficiency and integrity of the hearing. IV. An agent has no independent status [18] I want to make a final comment. Ms. Rubio referred to herself as a representative. I am not entirely comfortable with the implications in such a statement. It is one thing to say that Ms. Rubio represents Mr. Filgueira, as his agent, and another thing to say that she is a representative, as if she has some independent capacity to appear. This is dubious: an agent appears only in the capacity of the person for whom she acts. [19] This does not affect the practicalities of the situation. An agent speaks for the Complainant. She has the capacity to convey his wishes to the Tribunal, ask questions for him, and otherwise participate in the hearing. She does not have the professional or legal status of a lawyer, however, and has no independent standing in an adjudicative forum. [20] There are fundamental differences here. A lawyer has a distinct legal personality, which can be separated from her client. This is what gives her the status of counsel. The significance of this distinction will have to be considered at another time. Signed by Dr. Paul Groarke OTTAWA, Ontario July 20, 2005 PARTIES OF RECORD TRIBUNAL FILE: T952/7204 STYLE OF CAUSE: Ronaldo Filgueira v. Garfield Container Transport Inc. DATE AND PLACE OF HEARING: Toronto, Ontario July 11, 13, 14 and 15, 2005 RULING OF THE TRIBUNAL DATED: APPEARANCES: July 20, 2005 Ronaldo Filgueira (himself) Consuelo Rubio For the Complainant Harvey Capp Jason Kimelman For the Respondent

2005 CHRT 28

CHRT

Dreaver v. Pankiw

en

2005-07-21

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7112/index.do

2023-12-01

Dreaver v. Pankiw Collection Canadian Human Rights Tribunal Date 2005-07-21 Neutral citation 2005 CHRT 28 File number(s) T969/8904 Decision-maker(s) Doucet, Michel; Hadjis, Athanasios; Sinclair, Grant, Q.C. Decision type Decision Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE KEITH DREAVER, NORMA FAIRBAIRN, SUSAN GINGELL, PAMELA IRVINE, JOHN MELENCHUK, RICHARD ROSS, AILSA WATKINSON, HARLAN WEIDENHAMMER, CARMAN WILLET Complainants - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - JIM PANKIW Respondent RULING PANEL: Grant Sinclair, Chairperson Athanasios D. Hadjis, Member Michel Doucet, Member 2005 CHRT 28 2005/07/21 [1] The Complainants, nine in number, filed complaints on various dates in 2003, with the Canadian Human Rights Commission. The respondent, Jim Pankiw, was a Member of Parliament. He was defeated in the 2004 federal general election. [2] During his time as an M.P., the respondent authored and distributed a brochure called the householder to his constituents in the riding of Saskatoon-Humbolt. The householder is printed and paid for under the auspices of the House of Commons. Each MP is entitled to send up to four householders per year. [3] The complainants allege that in October 2003, the respondent distributed a householder that contained discriminatory comments about Aboriginal people contravening ss. 5, 12 and 14 of the Canadian Human Rights Act. The Commission has referred the complaints to the Canadian Human Rights Tribunal (Tribunal) for hearing. [4] The respondent brought a motion for an order that the Tribunal lacks the constitutional jurisdiction to hear the complaints. I. EXCLUSIVE JURISDICTION OF THE BOARD OF INTERNAL ECONOMY OF THE HOUSE OF COMMONS. A. Proper Use of House Resources [5] Householders are printed using the resources of the House of Commons. Funding for householders is provided by the Board of Internal Economy of the House of Commons. The Board exists pursuant to ss. 50 and following of the Parliament of Canada Act (PCA). Members of the Board include government and opposition Members of the House of Commons. It is chaired by the Speaker of the House. The Board's functions are to act on all financial and administrative matters in respect of the House of Commons, its premises, services and staff, as well as its Members. [6] The respondent contends that the Board holds the exclusive authority to oversee householders, including their content. [7] Under s. 52.6 (1) of the PCA, the Board has the exclusive authority to determine whether the use of funds, goods, services or premises made available to a Member for the carrying out of parliamentary functions, is proper. The respondent asserts that maintaining a relationship with constituents constitutes one of the parliamentary functions of a Member. Since the publication of householders better enable Members to pursue these relationships, these communications must logically also constitute a parliamentary function. [8] The respondent maintains that if the Board has exclusive jurisdiction over this parliamentary function, then no other court or statutory body, including the Tribunal, has the authority to make any determination over the same subject matter. The respondent's contention in this regard is quite bold. The Supreme Court of Canada recently re-affirmed, in Canada (House of Commons) v. Vaid 2005 SCC 30 at para. 81, that the CHRA is a quasi-constitutional document and any exemption from its provisions must be clearly stated. [9] Does such a clear statement appear in the PCA? In our opinion, it does not. The source for the respondent's assertion regarding the Board's exclusivity is found in s. 52.6 (1) of the PCA, which sets out the following: 52.6(1) The Board has the exclusive authority to determine whether any previous, current or proposed use by a member of the House of Commons of any funds, goods services or premises made available to that member for the carrying out of parliamentary functions is or was proper, given the discharge of the parliamentary functions of members of the House of Commons, including whether any such use is or was proper having regard to the intent and purpose of the by-laws made under subsection 52.5(1). 52.6 (1) Le bureau a compétence exclusive pour statuer, compte tenu de la nature de leurs fonctions, sur la régularité de l'utilisation - passée, présente ou prévue - par les députés de fonds, de biens, de services ou de locaux mis à leur disposition dans le cadre de leur fonctions parlementaires, et notamment sur la régularité de pareille utilisation au regard de l'esprit et de l'objet des règlements administratifs pris aux termes du paragraphe 52.5(1). [10] On its face, there is no direct reference to the non-application of the CHRA or the ousting of the Tribunal's jurisdiction. The respondent submits, however, that the Board's exclusive jurisdiction over the proper use of House resources by a Member encompasses the content of any material published with those resources. This submission is founded on an interpretation of the English version of s. 52.6 (1), where the term proper is used. According to the Oxford English Dictionary proper is defined as fit, suitable, right, in conformity with the demands of society, decent, and respectable. Thus, argues the respondent, the Board has the exclusive authority to determine if a householder, including its content, has exceeded these bounds of proper use, in the parliamentary context. [11] By using the term proper, did Parliament really intend to endow the Board with the authority to determine the fitness, decency, conformity with demands of society, or respectability of householders? A reading of the French version of s. 52.6 (1) suggests otherwise. The word proper is rendered as régularité. Le Nouveau Petit Robert, defines régularité as conformité aux règles, or in accordance with the rules. The Commission submits that this term is more closely associated with notions of administrative regularity, and we agree. Such a reading is consistent with the direction given in s. 52.6(1) that the Board should, in determining whether the use of House resources was proper, have regard to the intent and purpose of the by-laws made under subsection 52.5 (1). The printing of householders is specifically addressed in the Members' Offices By-Law, No. 301. It is obvious from a reading of the by-laws that their intent and purpose is to regulate the administration of House resources (e.g. purchasing office equipment, printing stationery, leasing office space, remunerating staff, etc.). The by-laws do not contain provisions touching upon human rights principles, nor, for that matter, decent or respectable conduct, to use the definition of proper suggested by the respondent. [12] The same conclusion was reached by the Ontario Court of Appeal in Ontario v. Bernier, (1994) 70 O.A.C. 400, and the Quebec Court of Appeal in R. v. Fontaine, [1995] A.Q. No. 295 (QL). At issue in both cases was whether s. 52.6 (1) ousted the jurisdiction of the courts to hear a case involving charges that a Member had used the funds allocated to him by the Board in a manner that contravened the Criminal Code. Both courts found otherwise, holding that s. 52.6 (1) only gives the Board authority to determine if a Member of the House of Commons used these resources in a manner consistent with the by-laws. Significantly, the term by-laws of the English text of ss. 52.5 and 52.6 is rendered as règlements administratifs in the French version. [13] As Mme Justice Arbour commented at paragraph 4 of the Bernier decision, Parliament established the Board to exclusively manage the internal workings of the House of Commons. In so doing, Parliament did not express an intention to remove from the courts their jurisdiction to apply the Criminal Code to Members. In our opinion, the same conclusion can be drawn with respect to the authority of the Tribunal to determine if there has been a violation of the CHRA. Parliament has not shown an intention to exclude Members, and particularly their householders, from the application of the CHRA. B. Parliamentary Privilege or Immunity [14] Nor does it appear to us that the PSA, and s. 52.6 in particular, extends the scope of any privilege or immunity from which Members may benefit. Parliamentary privilege provides Members with an absolute immunity from civil or criminal prosecution when speaking in the House of Commons or engaged in a proceeding in Parliament (see J.P.J. Maingot, Parliamentary Privilege in Canada, 2d ed). Over the years, the assertion of parliamentary privilege has varied in its scope and extent. But as the Supreme Court of Canada noted in Vaid (at para. 23), a narrower concept of privilege has developed in more recent times. The Court referred to a 1971 ruling of the Speaker of the House, who stated that parliamentary privilege does not go much beyond the right of free speech in the House of Commons and the right of a Member to discharge his duties in the House as a member of the House of Commons. [15] The respondent agrees that the immunity attached to parliamentary privilege does not extend to statements or publications made by Members outside of the House or parliamentary proceedings. Thus, members of legislatures are not immune from criminal prosecution from statements made to the press outside the Chambers of Parliament (see Re: Ouellet (Nos. 1 and 2) [1976] C.A. 788), nor from liability in defamation actions for answers given to a reporter outside a legislature (see Ward v. Clark, 2000 BCSC 979). It follows that there is no immunity from the application of the CHRA. II. THE CHRA DOES NOT APPLY TO THE RESPONDENT [16] The respondent further submits that the CHRA does not apply to him because he lacks the federal quality that would make him subject to the federal legislative scheme. He is neither engaged in a federal work, undertaking or business, nor is he a part of the Federal Crown or the Government of Canada. The only factor that brings him within the federal sphere of activity is that in communicating with his constituents through a householder, he is carrying out his parliamentary functions as a member of the House of Commons. His argument is premised on his contention that the legislative authority over a member of the House of Commons is limited to the PCA. [17] The purpose and scope of the CHRA is articulated in s. 2, and is not as limitative as the respondent suggests in his submissions. The provision states that the purpose of the CHRA is to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principles of equal opportunity elaborated therein. [18] In our opinion, the statutory language of the CHRA is broad enough to also encompass statements made by Members in householders published and paid for by the House of Commons, pursuant to an act of Parliament, the PCA. Since Parliament enacted this legislative framework, which ultimately regulates householders, it is plain that the publication and content of householders must also necessarily fall within the purview of matters coming within Parliament's legislative authority. III. SEPARATION OF POWERS BETWEEN THE LEGISLATIVE AND EXECUTIVE BRANCHES [19] The respondent submits that the Tribunal is an administrative tribunal established under the CHRA and the respondent contends that as such, it is not constitutionally distinct from the executive. To allow it to examine and decide upon the content of a Parliamentarian's communications would undermine the constitutionally enshrined separation of powers. [20] As was noted the Supreme Court of Canada in Re Alberta Legislation [1938] S.C.R. 100 at p. 133, the Constitution Act, 1867 contemplates a parliament working under the influence of public opinion and public discussion. The institution derives its efficacy from free public discussion of affairs and from the freeist and fullest analysis and examination from every point of view of political proposals. The Court added that this principle was signally true in respect of the discharge by members of Parliament of their duty to the electors. The respondent contends that the expression of political views by a member of the House of Commons is political speech and should be subject only to review by the electorate through the democratic process. No outsider, particularly an agent of the executive branch of the State, should be able to interfere with this free and unfettered debate and exchange of ideas in the legislature. [21] The respondent argued that the Government should not have any say or control over the free speech of a member of the House, particularly of the Opposition, such as the respondent. Allowing the review of contents of householders and other forms of Members' political speech would limit their ability to fully express their views. This, in turn, would have a chilling effect on the free and public debate of various opinions. It would also result in denying the electorate their Member's real point of view by preventing access to the full and frank information required to make a completely informed decision. [22] In Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52 at para. 32, the Supreme Court of Canada noted that while administrative tribunals span the constitutional divide between the judiciary and the executive and may possess adjudicative functions, they ultimately operate as part of the executive branch of government, under the mandate of the legislature. It is noteworthy, however, that this case related to the degree of institutional independence required of a licensing board, which the Court characterized as first and foremost a licensing body that did not approach the constitutional role of the courts (at para. 33). [23] More recently, in the case of Bell v. Canadian Telephone Employees Association, 2003 SCC 36, the Supreme Court addressed the issue of the institutional independence of the Canadian Human Rights Tribunal. The Court described the Tribunal as follows: The main function of the Canadian Human Rights Tribunal is adjudicative. It conducts formal hearings into complaints that have been referred to it by the Commission. It has many of the powers of a court. It is empowered to find facts, to interpret and apply the law to the facts before it, and to award appropriate remedies. Moreover, its hearings have much the same structure as a formal trial before a court. The parties before the Tribunal lead evidence, call and cross-examine witnesses, and make submissions on how the law should be applied to the facts. The Tribunal is not involved in crafting policy, nor does it undertake its own independent investigations of complaints: the investigative and policy-making functions have deliberately been assigned by the legislature to a different body, the Commission. [24] The Supreme Court arrived at the conclusion that this tribunal possesses a high degree of independence from the executive branch. In our opinion, given this finding by the Supreme Court, to treat the Tribunal as an arm of the Government for the purposes of this case is highly questionable. [25] The principle of the separation of power between the three branches - executive, legislative and judicial - has its roots in the preamble to the Constitution Act, 1867, which calls for a constitution similar in Principle to that of the United Kingdom. As the Supreme Court stated in Vaid, at paragraph 21, each of the branches of the State is vouchsafed a measure of autonomy from the others. Parliamentary privilege is one of the ways in which this principle is respected. In Vaid, the Supreme Court affirmed the need for the House's legislative activities to proceed unimpeded by any external body or institution, including the courts. As an example, the Court indicated that it would be intolerable if a Member who was overlooked by the Speaker at question period could file a human rights complaint alleging he had been discriminated against, or seek a ruling from the ordinary courts claiming that his guarantee of free speech under the Charter of Rights and Freedoms had been violated (Vaid, para. 20). These are truly matters internal to the House to be resolved by its own procedures. [26] The respondent referred us to Federal Court of Appeal decision in Taylor v. Canada (Attorney General) [2000] 3 F.C. 298, a case in which a human rights complaint under the CHRA had been filed against a judge of the Ontario Court, General Division. The judge had allegedly ordered the complainant, who was seated in his courtroom, to remove a headdress that he wore as part of his religious practice. The Federal Court of Appeal held that the principle of judicial immunity applies so as to prevent such proceedings against judges from being brought before the Commission and ultimately, the Tribunal. The principle of judicial immunity exists to ensure that judges can perform their duty with complete independence and free from fear. The respondent submits that just as the independence of the judicial branch must be protected, so must that of the legislative branch. The Tribunal therefore lacks the authority to interfere with either. [27] However, one must consider the Taylor case in its factual context. The Federal Court of Appeal noted that orders for the control of order or decorum in the court room during the course of a trial fall within the inherent jurisdiction of the court. The judge had engaged in a purely judicial act to which judicial immunity attached. [28] There is no doubt that statements made by a Member in the House of Commons constitute an inherently legislative function that is subject to the immunity associated with parliamentary privilege. No outside authority may interfere with this activity either. But as we have already stated, parliamentary privilege does not attach to statements in householders that are distributed to constituents. In our opinion, this situation is not analogous to the example given by the Supreme Court in Vaid or the fact situation in Taylor. [29] The present case can also be distinguished from Ontario (Speaker of the Legislative Assembly) v. Ontario (Human Rights Commission) (2001), 54 O.R. (3d) 595 (C.A.Ont.). A human rights complaint was filed with the Ontario Human Rights Commission in which it was alleged that the daily recital of the Lord's Prayer by the Speaker of the Ontario Legislature was in breach of the Ontario Human Rights Code. The respondent referred to paragraph 19, where the Court of Appeal of Ontario stated that the Ontario Human Rights Commission is simply an emanation of the Crown and is subject, at the very least, to the same restrictions respecting the Legislature as are the judiciary and executive. The issue for the Court was whether the daily recital of the Lord's prayer was a matter inherently related to the conduct of proceedings within the legislature. The Court found this to be the case and therefore the Code did not apply because of parliamentary immunity. [30] Finally, we would also note that although the Supreme Court, in Re: Alberta Legislation, emphasized the importance in our democracy of maintaining free public opinion and discussion, these rights are not absolute. The Court recognized that these values are subject to legal limits, such as the provisions of the Criminal Code and the common law. The Charter and the CHRA equally impose legal limits on free public opinion and discussion. [31] For all these reasons, the Respondent's motion is dismissed. Signed by J. Grant Sinclair, Chairperson Signed by Athanasios D. Hadjis, Member Signed by Michel Doucet, Member OTTAWA, Ontario July 21, 2005 PARTIES OF RECORD TRIBUNAL FILE: T969/8904 STYLE OF CAUSE: K. Dreaver, N. Fairbairn, S. Gingell, P. Irvine, J. Melenchuk, R. Ross, A. Watkinson, H. Weidenhammer and C. Willet v. J. Pankiw DATE AND PLACE OF HEARING: March 2, 2005 Ottawa, Ontario Saskatoon, Saskatchewan Calgary, Alberta (via videoconference) RULING OF THE TRIBUNAL DATED: July 21, 2005 APPEARANCES: Aisla Watkinson, John Melenchuk Richard Ross, Pamela Irvine Norma Fairbairn, Susan Gingell On their own behalf Philippe Dufresne For the Canadian Human Rights Commission Steven Chaplin For the Respondent

2005 CHRT 29

CHRT

Filgueira v. Garfield Container Transport Inc.

en

2005-07-29

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7113/index.do

2023-12-01

Filgueira v. Garfield Container Transport Inc. Collection Canadian Human Rights Tribunal Date 2005-07-29 Neutral citation 2005 CHRT 29 File number(s) T952/7204 Decision-maker(s) Groake, Paul Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE RONALDO FILGUEIRA Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - GARFIELD CONTAINER TRANSPORT INC. Respondent RULING PANEL/MEMBER: Dr. Paul Groarke 2005 CHRT 29 2005/07/29 I. The Application II. The Complainant Already has the Assistance of an Agent III. The Right to Have the Proceedings Translated A. The Common Law B. Section 14 of the Charter of Rights (i) Legal Issues (ii) The Nature of the Right C. The Canadian Human Rights Act IV. Conclusion V. Ruling I. THE APPLICATION [1] Ms. Rubio is appearing as an agent for the Complainant. She has applied to have the proceedings translated into Spanish. The request is that the Tribunal pay for the translation. [2] I had the opportunity to ask the Complainant a number of questions when the application was made. I am satisfied, on the basis of his answers, and the information provided by Ms. Rubio, that he has a limited command of English. It is difficult to say how far this goes. He understood me when I asked him how he could work for the Respondent without speaking English. [3] I am proceeding on the basis that the Complainant has some understanding of English but cannot speak it. His level of comprehension is low. The Registry has already provided translation of his testimony, on the basis of a direction that translation be provided for witnesses who have difficulty testifying in the language of the proceedings. [4] The Complainant now applies to have the rest of the proceedings translated. II. THE COMPLAINANT ALREADY HAS THE ASSISTANCE OF AN AGENT [5] I think it is significant that the Complainant already has the assistance of an agent. Although Mr. Filgueira has been in attendance throughout the inquiry, he is a passive participant and has left the conduct of his case in the hands of Ms. Rubio. She communicates with him in Spanish, his native language, and has kept him informed of the progress of the hearing. [6] Ms. Rubio is not a lawyer and is not appearing as counsel. She appears only with the permission of the Tribunal. III. THE RIGHT TO HAVE THE PROCEEDINGS TRANSLATED [7] I am not aware of any cases that deal with the question before me in the context of a human rights proceeding. Nor have I had the benefit of full legal argument. I will accordingly limit my remarks. [8] The right to have the proceedings of the Tribunal translated into a language other than English or French can probably be traced to three legal sources. The first is the common law. The second is section 14 of the Canadian Charter of Rights and Freedoms. The third arises under the Canadian Human Rights Act. A. The Common Law [9] The common law appears to deal with the right to have the proceedings translated as a question of fairness. It is apparent that what is fair will vary in the circumstances of each case. The standard is much higher in a criminal context. [10] I believe that the common law still applies. Section 50(1) of the Canadian Human Rights Act states that the Tribunal shall give all of the parties a full and ample opportunity to present their cases. This brings in the principles of natural justice, which may give rise to procedural rights in certain situations. The parties must be allowed to present their cases and respond to the case on the other side. This may require the services of a translator. [11] The purpose of providing translation is to protect the integrity of the process. A Tribunal faced with a request for translation must decide whether translation is needed in the circumstances of the case. The issue is whether the failure to provide the translation would compromise the fairness of the process. The need must be real and compelling. B. Section 14 of the Charter of Rights [12] Section 14 of the Charter of Rights states: [13] 14. A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter. [14] Although it is a criminal case, the decision of the Supreme Court of Canada in R. v. Tran, [1994] 2 S.C.R. 951, holds that the parties in civil and administrative proceedings enjoy the rights enshrined in section 14. Chief Justice Lamer made it very clear, however, at p. 93, that the rules that apply in different areas of the law must be developed in cases that arise in those areas. [15] The Canadian Human Rights Commission has provided me with the decision of the Federal Court of Appeal in Mohammadian v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. no. 916, which held that applicants before the Convention Refugee Determination Division of the Immigration and Refugee Board were entitled to the assistance of an interpreter under section 14. This is a helpful decision. I am not convinced that it affects the fundamental premise that the right to the assistance of an interpreter may require different things in different areas of the law. [16] The dispute before the Tribunal invokes the rights of the person and accordingly raises matters of fundamental import. The human rights process does not raise the same kinds of concerns as the criminal law, however. It can also be distinguished from immigration and refugee cases, which deal directly with the legal status of the individual. [17] Although there is a public element in all human rights litigation, the present case bears the hallmarks of private litigation. The Complainant is looking for monetary damages. The primary issue before me is whether he was discriminated against in the payment of his wages. He has already been before Labour Canada on one of the issues before me. (i) Legal Issues [18] There are other reasons why the Tribunal should be cautious in applying section 14. For one thing, the right in section 14 is subject to the reasonable limits contemplated in section 1 of the Charter of Rights. Although I have not had the benefit of submissions on the matter, the point is simply that the right in section 14 is not absolute. [19] The wording of the section is also notable. Section 14 gives a party who does not speak the language of the proceedings the right to the assistance of an interpreter. The section does not say that the party has a right to a formal translation of the proceedings. This may be necessary in the context of criminal charges or other penal statutes. But the two formulations are not the same. [20] There are real differences between a right to the assistance of an interpreter and a right to translation of the hearing. This is illustrated by the practice of the Tribunal, which generally uses simultaneous translation. This is expeditious and efficient, and in keeping with the mandate of the Tribunal. The logistics of this mode of translation are such, however, that it cannot be provided without three interpreters. The process also requires an individual to monitor the microphones and speakers that are necessary to provide the service. [21] The point is simply that there is some room for different interpretations of the scope of section 14. It might be possible to provide consecutive translation, with one interpreter, but that is a more cumbersome process and has costs and inefficiencies of its own. There may be more informal means of meeting the requirements of the section, but none have been suggested to me. (ii) The Nature of the Right [22] The nature of the right in section 14 should also be considered. The Tribunal should be wary of absolute or rhetorical standards, which bear no necessary relation to the task at hand. That task is to see that justice is done in the matter before it. I think this requires a pragmatic rather than an abstract standard, which recognizes that the right enshrined in section 14 is instrumental. [23] A Tribunal should keep in mind that the right to the assistance of an interpreter serves a larger aim. It ensures that the parties to a legal proceeding can participate meaningfully and effectively in the process, in a manner that guarantees the fairness, thoroughness and ultimately the legitimacy of the process. [24] The goal of providing the assistance of an interpreter is to further the process. There are many procedural principles, such as natural justice and certain aspects of the right to make full answer and defence that come into play in this context. None of these principles are exhaustive, I think. They simply guarantee the right of each party to be heard by the Tribunal. [25] This is apparent in the passage from Donald G.M. Brown and John M. Evans, for example, in Judicial Review of Administrative Action in Canada (Toronto: Canvasback Publishing, 1998) at 10:4100, where they state: [26] [...] a person with a right to be heard in proceedings before a court, or an administrative tribunal, is entitled to the assistance of an interpreter in order to ensure that the person can both present proofs and arguments in a manner that can be `heard' by the decision-maker; and respond to the testimony of witnesses and to anything said by the adjudicator. [27] I think this contains a helpful statement of the Tribunal's obligations in the present case. C. The Canadian Human Rights Act [28] The third source of any right to translation may be the most difficult from a legal perspective. There are two fundamental submissions before me. The first is that the Tribunal has an obligation to put the Complainant in the same position as a litigant who understands the language of the proceedings. Anything less than this, she submits, is implicitly discriminatory and contravenes the Canadian Human Rights Act. The Act prohibits discrimination on the ground of national or ethnic origin. [29] This submission is in keeping with the Act. Section 5 of the Canadian Human Rights Act prohibits discrimination in the provision of services customarily available to the public. There is no doubt in my mind that the Registry of the Canadian Human Rights Tribunal provides many services to the public. It has a fundamental obligation to respect the principle of equality at the heart of the Act and cannot discriminate in the provision of these services. [30] The second submission is that the Tribunal has a duty to accommodate Mr. Filgueira. This deserves serious consideration. I think it is clear that the Tribunal has an obligation, under the Canadian Human Rights Act, and probably in the general law, to accommodate someone who suffers from a physical or psychological disability. The obvious example is probably the provision of some form of assistance to individuals who have visual or auditory disabilities. [31] The question is whether the same logic requires that assistance be provided to the members of linguistic minorities. I think the answer is probably yes. The case law establishes that the Tribunal would have an obligation to provide the Complainant with an interpreter if he was deaf. In some circumstances, at least, a language may place a party at a disadvantage and undermine its right to participate fully in the process. The more difficult task is to decide what level of assistance is required. [32] The matter is more complicated than it may appear. I think that it is probably necessary to distinguish between the administrative and adjudicative functions of the Tribunal in this context. The Registry is charged with the task of providing those services that are necessary to allow the parties to participate properly in the inquiry. The responsibilities of the members who hear cases lies in another area. [33] There are fundamental issues here. I say this because there is a question whether the holding of an inquiry under the Act, and the legal process, in itself, can be properly described as a public service. There are at least some reasons to think otherwise. The physical and logistical aspects of an inquiry cannot be allowed to interfere with the requirements of the process. I do not see how a Tribunal can accommodate the parties, for example, and protect them from the rigours of cross-examination. [34] I am not deciding the question. The purpose of an inquiry, however, is to determine the truth and provide some measure of justice to the parties. This must come first in any examination of the Tribunal's responsibilities to the litigants. Any request for accommodation must respect the limits that this inevitably places on the Tribunal's ability to accommodate. [35] Whatever the obligations of the Tribunal, I think my discussion of the issues that arise under the common law and the Charter of Rights is sufficient to deal with the present application. I do not think that the Tribunal's obligations under the Canadian Human Rights Act require that the rest of the proceedings be translated. IV. CONCLUSION [36] It is very easy to say that Mr. Filgueira should be put in the same position as a litigant who was born and raised in the language of the proceedings. The problem is that this does not mean very much, once differences in education, upbringing and natural intelligence are taken into account. The idea that the Complainant must understand every word uttered in a hearing bears little relation to reality. [37] The level of understanding required for full participation in a hearing is relatively low. A party must be able to make the decisions that must be made, in order to prosecute the case. This requires an understanding of the actual process. It also requires some appreciation of the significance of the process and the consequences that attach to it. [38] The parties have already been through a mediation and I am satisfied from all the circumstances that the Complainant has a good understanding of the case. There is also the plain fact that he has the assistance of an agent in the case, who speaks his language. It is apparent that he has discussed the case at length with Ms. Rubio and is in continual communication with her. They have obviously discussed what evidence should be called and what his witnesses will say. [39] I would have thought that the purpose of the agent, aside from conducting the case on the Complainant's behalf, is to ensure that he understands the process. Ms. Rubio cannot speak for Mr. Filgueira in the course of the hearing without reporting to him. There is nothing burdensome in this. It is part of the ordinary conversation that must take place, between any litigant and the person who appears for him. [40] No one is asking Ms. Rubio to translate the proceedings or take over the role of an interpreter. There is no simple line of demarcation, however, between the responsibilities of an interpreter and the responsibilities of an agent. The margins overlap. I think it is clear that one of the reasons Ms. Rubio is acting is that she speaks Spanish. [41] The substantive and the practical issues come together here. As an agent, Ms. Rubio appears in some legal sense as an extension of Mr. Filgueira. From a practical perspective, she needs to understand exactly what is occurring in the hearing. But of course she does. The legal question is whether this devolves to Mr. Filgueira. If someone appears as an agent, in the capacity of a particular party, can her understanding of the process be attributed to the party? [42] I think the fundamental premise of an inquiry is that the parties understand the process. There is some part of this requirement that is personal, whether a party appears on its own or with an agent. It cannot be transferred. The parties must know what is taking place. I nevertheless think the participation of Ms. Rubio in the hearing needs to be taken into account, in deciding whether Mr. Filgueira has a right to have the proceedings translated into Spanish. [43] If the Complainant appeared by himself, I suspect that Mr. Filgueira would be entitled to the assistance of an interpreter for the duration of the hearing. There are procedural and practical reasons why this must be so. It would not be possible to hold a hearing without it. The plain fact of the matter, however, is that the Complainant is not appearing by himself. [44] I naturally agree that Mr. Filgueira is entitled to be put in the same position of other litigants. That does not, however, require translation of the proceedings. It requires that he be given a full and ample opportunity, in the words of the Canadian Human Rights Act, to advance his case and reply to the other side. I am willing to go as far as I reasonably can, in order to ensure that his rights are protected. [45] The Tribunal has an obligation to be prudent in matters of the public purse. Resources are always scarce. All other matters aside, the cost of setting a precedent must be considered, whether the matter is dealt with under the common law, section 1 of the Charter of Rights, or the Canadian Human Rights Act. I make no comment on the tests that apply in this context. I am nevertheless satisfied as a matter of fairness that some parts of the present inquiry need to be translated. [46] Ms. Rubio has advised the Tribunal that some of the witnesses that the Respondent is calling will raise questions concerning the Complainant's performance of his duties. She claims that this evidence is new. It may also be central to the case. I agree that Mr. Filgueira needs to know what the witnesses say in this regard, if he is to discuss it with the person who is appearing on his behalf. [47] I am accordingly prepared to order that the Complainant be provided with translation for this part of the case. The application of this ruling to the testimony of specific witnesses can be discussed at the appropriate time. V. RULING [48] It is so ordered. Signed by Dr. Paul Groarke TORONTO, Ontario July 29, 2005 PARTIES OF RECORD TRIBUNAL FILE: T952/7204 STYLE OF CAUSE: Ronaldo Filgueira v. Garfield Container Transport Inc. DATE AND PLACE OF HEARING: Toronto, Ontario July 11, 13, 14 and 15, 2005 DECISION OF THE TRIBUNAL DATED: July 29, 2005 APPEARANCES: Ronaldo Filgueira (himself) Consuelo Rubio On behalf of the Complainant Harvey Capp Jason Kimelman On behalf of the Respondent

2005 CHRT 3

CHRT

Communications, Energy and Paperworks Union of Canada v. Bell Canada

en

2005-01-25

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6510/index.do

2023-12-01

Communications, Energy and Paperworks Union of Canada v. Bell Canada Collection Canadian Human Rights Tribunal Date 2005-01-25 Neutral citation 2005 CHRT 3 File number(s) T503/2098 Decision-maker(s) Deschamps, Pierre; Sinclair, Grant, Q.C. Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE COMMUNICATIONS, ENERGY AND PAPERWORKERS UNION OF CANADA AND FEMMES-ACTION Complainants - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - BELL CANADA Respondent RULING ON ADMISSIBILITY OF EVIDENCE RE DEFAULT INTEREST RATE PANEL: J. Grant Sinclair Pierre Deschamps 2005 CHRT 3 2005/01/25 [1] Under s. 53(4) of the CHRA, when making an order for compensation, the Tribunal may include an award of interest at a rate and for a period it considers appropriate. This however is subject to Rule 9(12) of the Tribunal's Rules of Procedure, which provides that, unless otherwise ordered by the Tribunal, an award of interest shall be at a specified rate and for a specified period. In this ruling, we refer to this as the default interest rate. [2] CEP will propose (assuming a finding of liability) that the Tribunal make an award of interest different from the default interest rate. CEP also proposes to call Dr. Lawrence Gould to give expert evidence relating to what the appropriate interest rate and interest period should be for any award of interest. [3] Bell has brought a motion asking that the Tribunal not receive Dr. Gould's evidence. Bell argues that this evidence is not necessary for the Tribunal to determine an appropriate award of interest. [4] For the purpose of its argument on the motion, Bell seeks to introduce as evidence the fact that the Tribunal, when amending the default interest rate in 2004, did not consult any expert opinion. Bell's argument will be that it was not then necessary to have expert assistance and therefore, it is not necessary now. [5] For Bell's motion, the Tribunal must decide the question of whether on the facts and circumstances of this case, Dr. Gould's evidence is necessary in determining an award of interest. [6] In our opinion, the fact that an expert was not consulted when setting the default interest rate for Rule 9(12) is of no assistance in determining this question. That fact tells the Tribunal nothing about whether Dr. Gould's proposed expert evidence is necessary in this case. It has no probative value. [7] Accordingly, Bell's request to introduce this fact into evidence is denied. Signed by J. Grant Sinclair, Chairperson Signed by OTTAWA, Ontario Pierre Deschamps, Member January 25, 2005 PARTIES OF RECORD TRIBUNAL FILE: T503/2098 STYLE OF CAUSE: Communications, Energy and Paperworks Union of Canada, Femmes-Action v. Bell Canada DATE AND PLACE OF HEARING: Ottawa, Ontario January 24, 2005 RULING OF THE TRIBUNAL DATED: January 25, 2005 APPEARANCES: Peter Engelmann For Communications, Energy and Paperworkers Union of Canada Andrew Raven K.E. Ceilidh Snider For the Canadian Human Rights Commisson Peter Mantas Guy Dufort For Bell Canada

2005 CHRT 30

CHRT

Filgueira v. Garfield Container Transport Inc.

en

2005-08-02

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7130/index.do

2023-12-01

Filgueira v. Garfield Container Transport Inc. Collection Canadian Human Rights Tribunal Date 2005-08-02 Neutral citation 2005 CHRT 30 File number(s) T952/7204 Decision-maker(s) Groake, Paul Decision type Decision Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNERONALDO FILGUEIRA Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - GARFIELD CONTAINER TRANSPORT INC. Respondent RULING MEMBER: Dr. Paul Groarke 2003 CHRT 30 2005/08/02 I. Introduction II. The Case Law III. Costs IV. Taking the Temperature V. Merit VI. Ruling I. Introduction [1] The Respondent has applied for a non-suit. After Mr. Capp had made the application, but before he had concluded his remarks, Ms. Rubio objected that the Respondent must elect whether it will call evidence before applying for a non-suit. I allowed her to raise the objection and advised the parties that I would deal with it before proceeding further. II. The Case Law [2] Ms. Rubio relies on the decision of this Tribunal in Chopra v. Canada (Department of National Health and Welfare), [2001] C.H.R.D. No. 20 (QL), where Mr. Hadjis noted that a variety of Tribunals and Boards have gone different ways on the issue. He then applied the rule in the civil courts. This apparently requires that the defending party make an election before applying for a non-suit. [3] The statement of principle in Chopra can be found at para. 22: I therefore conclude that the common law rule of election does apply to this Tribunal but that the parties may, on the one hand, waive its application, which is not the case here, and on the other hand, where the appropriate circumstances warrant, a respondent may be exempted from the rule's application by the Tribunal. I think there may be room for different views. I agree with Mr. Hadjis that the question should be decided in the circumstances of each case. The Tribunal enjoys more latitude in these matters than a court. [4] The decision in Chopra relies heavily on the decision of an Ontario Board of Inquiry in Nimako v. C.N. Hotels, (1985) 6 C.H.R.R. D/2894. I feel obliged to say that the Board in Nimako seems to have misunderstood the nature of an application for a non-suit. It is wrong to suggest that a Tribunal that entertains a motion for a non-suit is in danger of deciding the case twice. A Tribunal that grants a motion has not decided the case in a legal sense. It has decided that there is no case to meet. [5] Mr. Hadjis also refers, however, to the decision of a subsequent Board of Inquiry in Potocnik v. Thunder Bay (City), [1996] O.H.R.B.I.D. No. 16. The situation in Potocnik was similar to the one before me. Counsel had advised the Board that the Respondent would call evidence if it was put to its election before applying for the non-suit. Mr. Capp has done the same thing. The Board in Potocnik did not ask the Respondent to make its election before applying for a non-suit. III. Costs [6] I have not had the luxury of investigating the rationale behind the introduction of the civil rule. Mr. Capp says that the practice in the courts has changed over the last thirty-five years. There is nevertheless a fundamental difference between the civil process and the human rights process, which has a bearing on the operation of the rule. [7] That difference is a practical one. A Respondent that calls evidence in the civil courts can recoup its costs at the end of the case. This is not possible under the Canadian Human Rights Act. Even if the Complainant has not raised any evidence against it, the Respondent will have to pay the expenses that it incurs in presenting its defence. These expenses are obviously substantial. Aside from legal costs, Mr. Capp has advised the Tribunal that some of his witnesses are from outside the city. [8] This kind of concern goes beyond the Respondent. The Board in Potocnik considered the cost of continuing with the hearing in deciding to let the Respondent apply for a non-suit before making its election. 13. The City has also pointed to the cost of this hearing, and cites the case of Tomen v. O.T.F. (No. 3) (1989) 11 C.H.R.R. D/24.... In that case, the Board of Inquiry ... decided to depart from the normal civil court practice of ordering an election. One of the reasons cited by the Board was the substantial cost of the hearing ... The City points out that everyone's bills for the present hearing are being paid by a public sector that is currently under considerable financial strain, and argues simply that if this hearing can end, it should. These costs are real. I would think that this helps to explain why the law permits an application for a non-suit in the first place. [9] I agree with the Respondent's submission that the question of cost is more pressing in the instance of a private employer. It seems rather cavalier to say that these kinds of expenses are simply part of the cost of doing business. Mr. Capp has candidly said that his client has no interest in developing the law or contributing to the public record. The employer's primary concern in the present case is financial, and justifiably so. There are no policy issues before me. [10] I think the Board in Potocnik was merely acting responsibly. This is not the place to discuss the test for a non-suit. But the threshold is very low and the Respondent is submitting that there is no evidence against it. If this is the case, why should the Tribunal require that the parties and the public pay the substantial costs associated with continuing the process? There is a point below which the expense, aggravation and inconvenience that attend upon a hearing cannot be justified. The savings that accrue, if a case does not proceed, accrue to all sides. This includes the Complainant. IV. Taking the Temperature [11] Ms. Rubio has submitted that it would be unfair to let the Respondent take the temperature by applying for the non-suit. I believe the suggestion is that the Respondent gains an unfair advantage if it loses on the motion, since the Tribunal may somehow reveal its thinking on the case. This kind of concern is misplaced. The function of a Tribunal on an application for a non-suit is simply to decide whether there is evidence in support the Complainant's allegations. There is no weighing of the evidence and nothing to comment on, if the application fails. The Tribunal remains in a state of suspended judgement, its neutrality intact. [12] The initial obligations on the Complainant are minimal. The Complainant should not be allowed to evade them. Nor is it any answer to say that the Complainant should be allowed to make up the deficiencies in its case when the Respondent presents its evidence. A Tribunal that grants an application for a non-suit has held that there is no case to make up. Many of the rationales that are cited in the caselaw do not apply unless the Complainant has called some evidence in support of his allegations. The Respondent has no obligation to answer gratuitous allegations. [13] It is a serious matter to require that a party in an adjudicative process respond publicly to legal allegations. A party who prosecutes a case in a judicial or quasi-judicial arena has an obligation to lead evidence in support of its claims. I would have thought that this is one of the principles of fundamental justice. Where is the unfairness in finding that a Respondent has no obligation to enter a defence in a situation where there is no evidence against it? V. Merit [14] There may be good reasons for requiring an election in some cases. I am sure that there are situations where an application for a non-suit is frivolous or obstructs the process. It is for the Tribunal hearing a particular case to decide what is appropriate in the circumstances before it. [15] There are a variety of factors that can be considered in this context. Among other things, I think that a Tribunal is entitled to consider whether the motion is put forward in good faith. It was Ms. Rubio who raised this factor, in submitting that there is no real merit in the application before me. She did not want to call the application frivolous. She nevertheless submitted that it was tactical and abounding in opportunism. [16] I do not accept these suggestions. I think the tactics are on the other side. It is the Complainant who is trying to stave off a legitimate motion, which may be fatal to his case. This is understandable, but it hardly provides a principled reason for depriving the Respondent of the opportunity to make the application. [17] I take no position on the merits of the application for a non suit. It nevertheless raises issues that deserve serious consideration. I am satisfied in the circumstances of the case that there is no reason to put the Respondent to its election before hearing the application for a non-suit. VI. Ruling [18] The objection is overruled. Signed by Dr. Paul Groarke OTTAWA, Ontario August 2, 2005 PARTIES OF RECORD TRIBUNAL FILE: T952/7204 STYLE OF CAUSE: Ronaldo Filgueira v. Garfield Container Transport Inc. DATE AND PLACE OF HEARING: Toronto, Ontario July 27, 2005 RULING OF THE TRIBUNAL DATED: APPEARANCES: August 2, 2005 Ronaldo Filgueira (himself) Consuelo Rubio For the Complainant Harvey Capp For the Respondent

2005 CHRT 32

CHRT

Filgueira v. Garfield Container Transport Inc.

en

2005-08-17

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7125/index.do

2023-12-01

Filgueira v. Garfield Container Transport Inc. Collection Canadian Human Rights Tribunal Date 2005-08-17 Neutral citation 2005 CHRT 32 File number(s) T952/7204 Decision-maker(s) Groake, Paul Dr. Decision type Decision Decision status Final Grounds Age National or Ethnic Origin Decision Content Between: Ronaldo Filgueira Complainant - and - Canadian Human Rights Commission Commission - and - Garfield Container Transport Inc. Respondent Decision Member: Dr. Paul Groarke Date: August 17, 2005 Citation: 2005 CHRT 32 Table of Contents I. Introduction II. Preliminary Issues A. Was the Complaint Withdrawn? B. Mr. Filgueira’s Hearing III. Application For Non-Suit A. Law. B. Allegations (i). Age (ii). National or Ethnic Origin (a). Pay-scale (b). Overtime (c). Conclusions IV. Ruling. 11 I. Introduction [1] Mr. Capp, counsel for the Respondent, has applied for a non-suit. He submits that the Complainant has not led any evidence to support the essential allegations in the complaint. [2] The Complainant alleges discrimination on two grounds. The first is national or ethnic origin. The second is age. Mr. Filgueira says that Garfield paid him $1.00 less an hour than other employees. It also gave him less overtime. II. Preliminary Issues [3] There are two preliminary issues. The first is whether the Complainant withdrew his allegations in the course of giving testimony. The second is whether he should be allowed to return to the witness box to explain his previous testimony. A. Was the Complaint Withdrawn? [4] Mr. Capp submitted that the Complainant withdrew his allegations in the course of cross-examination. At one point, he questioned Mr. Filgueira as follows: Mr. Capp: And in your complaint, sir, part of your complaint is that you’re complaining because the company discriminated against you based on your national or ethnic origin, is that correct? Mr. Filgueira: I didn’t say that. It could be a possibility or because I did not speak English. This kind of exchange is typical. [5] Mr. Filgueira tried to clarify his testimony: Mr. Filgueira: Initially that was placed there, but then what we thought was that it was really because I didn’t speak English. He then stated: Mr. Filgueira: I was not sure whether the discrimination was on the basis of my being Chilean or because I did not speak English. Nobody told me. Although Mr. Filgueira equivocates, in responding to some of the questions, it does not affect the substance of these remarks. [6] At a later point in the examination, Mr. Capp asked: Mr. Capp: And if someone were looking at determining whether or not there was discrimination based upon the country of origin or their ethnic background, you and I can agree that that wouldn’t appear to be the case as far as Garfield Container Transport Inc. is concerned, isn’t that correct? Mr. Filgueira: Correct. This is in keeping with the rest of the cross-examination. Mr. Filgeuira conceded point after point. [7] The cross-examination became a pursuit. When pressed, Mr. Filgueira shifted ground. Mr. Capp followed. If there was no problem with the salary, there was the overtime. He wasn’t given the overtime that he was entitled. Mr. Capp went through the salary records, and forced him to agree that he was paid his overtime. At one point, he agrees that he was not discriminated against on the basis of age. At another point, he agrees that the company did not retaliate against him. Elsewhere, he agrees that other guards were paid a dollar more an hour because they checked the reefer temperatures. [8] There is no escaping the reality that much of the Complainant’s testimony contradicts the position he is taking as a party in the hearing. Having said this, I think the Tribunal should proceed cautiously in this kind of situation. After all, it is for the Complainant to decide whether he wants to continue with the case or withdraw the allegations. It is clear that Mr. Filgueira continues to stand by the allegations in the complaint, whatever he testified. In the circumstances, I think it would simply be wrong to say that he has abandoned his case. B. Mr. Filgueira’s Hearing [9] During the course of her submissions on the application for a non-suit, Ms. Rubio also advised the Tribunal that Mr. Filgueira had a problem with his hearing. She did not become aware of this until after he had finished his testimony. This would apparently explain the passages in which he appears to withdraw his allegations. Ms. Rubio then suggested that Mr. Filgueira should be allowed to return to the witness box and explain his previous testimony. [10] Mr. Capp submitted that it was too late to raise this kind of matter. I have to agree. If there was a problem with Mr. Filgueira’s hearing, it should have been apparent while he was in the witness box. It seems rather convenient to raise it now, in the face of an application to dismiss the case. I think Mr. Filgueira’s testimony was coherent and intelligible. Some of his responses were cryptic. But evidence is always imperfect. The transcript does not raise any serious doubts as to his understanding of the questions that were put to him. He understood the difference, for example, between training and orientation. [11] The idea that the Complainant should be allowed to return to the witness box after he closes his case and clarify his previous answers is new to me. The efficiency and fairness of the process is premised on the understanding that the hearing will proceed in an orderly and timely fashion, one witness at a time. The law is full of exceptions, but the whole process would unravel if witnesses were allowed to come back and refurbish their evidence. It would be a mistake to let Mr. Filgueira to return to the witness box. III. Application For Non-Suit [12] A Tribunal that rules on a non-suit should confine itself to the application before it. As a matter of natural justice, it may be necessary to provide reasons or refer in some neutral way to the evidence that is before it. This is a different kind of analysis, however, than the analysis carried out at the end of a hearing. There is no reason to weigh evidence or evaluate the merits of the case. A. Law [13] The Respondent has given me case law that deals specifically with the test for a non-suit in an administrative context. In International Brotherhood of Electrical Workers, Local 348 v. AGT Ltd. [1997] A.J. No. 1004 (Alta. Q.B.), at para 15, Brooker J. held: I am satisfied that the board must correctly apply the no evidence test to a non-suit application. In doing so its function is not to weigh the evidence. Its function is to determine if there is any evidence adduced on the material element in question. The board can only grant a non-suit when it finds that there was no evidence in re­lation to one or more of the essential elements of the grievance. This has been referred to as the any evidence test. [14] As it turns out, there is a second test in the jurisprudence. This has been discussed in Gerin v. I.M.P. Group Ltd. (No. 1) (1994), 24 C.H.H.R. D/449 (NS Bd. Inq.), at para. 24, where Bruce Wildsmith stated: ... the any evidence standard is probably too low; there must be some reasonable basis on which a conclusion in the complainant’s favour could be reached. The second test accordingly holds that there must be evidence on which a Tribunal could find in favour of the Complainant. [15] David Mullan follows the lead of Mr. Wildsmith in Modi v. Paradise Fine Foods Ltd., 2005 HRTO 24, at para. 13, and applies the second test. This is in keeping with the comments of MacIntyre J. in Ontario (Human Rights Commission) v. Simpsons Sears Ltd. [1985] 2 S.C.R. 536, at para. 28, where he described a prima facie case as: … 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. This is not a high threshold and the difference between the two tests is easily exaggerated. [16] The decision in Gerin cites an old English case, Ryder v. Wombwell (1868) L.R. 4 Exch. 32 at 38-39, which formulates the test in a manner that seems particularly helpful in the present instance. [T]here is in every case … a preliminary question which is one of law, viz., whether there is any evidence on which the jury could properly find the question for the party on whom the onus of proof lies. If there is not, the judge ought to withdraw the question from the jury and direct a non-suit . . . [17] The point I wish to make is that the use of the words any evidence in the context of a non-suit has some limits. The evidence led by the prosecuting party must meet a certain standard. It must be evidence that could be relied upon. I notice that MacIntyre J. writes that a prima facie case must be sufficient. I think the evidence must also be appreciable. There is a threshold below which the probative value of the evidence is so minimal that it has no legal effect. B. Allegations (i) Age [18] The Complainant makes two allegations. One is that Mr. Filgueira was discriminated against on the basis of age. [19] There is no evidence of this. The only evidence with respect to age is that Mr. Filgueira was older than the other employees. There is also evidence before me that another night watchman may have been paid more. This is not enough. [20] I realize that some of the case law suggests that the mere fact that a Complainant in a particular group was treated differently is enough to establish a prima facie case of discrimination. I think this reading of the law would probably empty the process of any meaningful requirement. Since Mr. Filgueira was the oldest employee, any evidence that another employee was paid more would give rise to an inference of discrimination. I think there must be more. There must be a causal connection. There must be evidence that the difference was based on a prohibited ground. (ii) National or Ethnic Origin [21] The other allegation in the complaint is that Mr. Filgueira was discriminated against on the basis of his national or ethnic origin. There are two factual allegations here. The first relates to pay-scale; the other to overtime. (a) Pay-scale [22] Mr. Filgueira was described as a night watchman. Mr. Capp called him a guard. There were night guards and day guards. Mr. Filgueira alleged that he was paid less than other guards. [23] There is an evidentiary matter that requires comment. Ms. Rubio relied on a single salary sheet, which contained pay stub information for Mr. Filgueira and a number of other employees. The parts of this document that relate to other employees were never properly entered into evidence. I have no information as to who these individuals were, what their duties were, or why they were employed. The parts of the document relating to other employees have no weight whatsoever. [24] The major problem that Mr. Filgueira faces on the non-suit is that he did not lead evidence to establish the pay-scale for guards. At this point in time, I simply do not know what other guards were paid. There is the testimony of Mr. Beaudoin, but he had additional duties. More to the point, he was not a night watchman. Mr. Beaudoin worked days and the evidence established that the workload was higher during the day. [25] The only piece of evidence that might give rise to an inference of discrimination comes from the Complainant himself. Mr. Filgueira testified that Mr. Pahar, another night watchman, said that he was paid a dollar more an hour. Mr. Pahar was slated to testify but did not answer the subpoena. Ms. Rubio decided not to insist on his appearance. I am left with Mr. Filgueira’s testimony. [26] The testimony does not establish that Mr. Pahar was paid more for performing the same duties. Mr. Filgueira agreed, in cross-examination, that other gate guards were paid more because they recorded reefer temperatures. Mr. Filgueira did not perform this function. The obvious question is whether Mr. Pahar recorded the reefer temperatures. The evidence does not tell us. [27] It is true that Mr. Filgueira testified that he trained Mr. Pahar. This might arguably be construed as evidence that they had the same duties. There are still deficiencies in the record, however. The evidence establishes that Mr. Pahar was East Indian and a member of a minority. It follows that the evidence regarding his pay does not support the allegation that Garfield discriminated against Mr. Filgueira because he was a member of an ethnic minority. [28] I suppose it could still be suggested that the employer treated Mr. Filgueira, a Chilean, differently than employees from India. There is a suggestion that Mr. Jasbir, the yard manager, may have been hiring his own people. This is speculation, however. There is no evidence that Mr. Pahar was paid more because he belonged to a particular ethnic group. The complete paucity of evidence on the employer’s practices makes it impossible to say why different wages might be paid. (b) Overtime [29] Mr. Filgueira has also alleged that Garfield discriminated against him in awarding overtime. There are two separate claims. The first is that Garfield failed to pay him overtime prior to 2001. The second is that it reduced his overtime, as a result of the present complaint. 1. Prior to 2001 [30] The first claim requires some explanation of the facts. When Mr. Filgueira was originally hired by Garfield, he worked 72 hours a week. He was not paid overtime. This eventually led to a complaint to Labour Canada regarding the company’s failure to pay overtime. [31] The complaint to Labour Canada was subsequently settled. There is a letter from a labour inspector. It is dated June 1, 2001 and states that Mr. Filgueira is entitled to $13,104.00 for unpaid overtime. [32] The final paragraph of the letter states: As required by Section 251(2) [of the Canada Labour Code], please indicate by your signature below that the amount stated above, when deposited into your RRSP, is the full amount owed to you for overtime worked to this date. This is followed by a signature line. [33] There is no reason to go any further into the details of the matter. Subsection 251(2) of the Canada Labour Code states that the employer and employee must agree on the amount owed. Mr. Filgueira accepted the figure in the letter as full payment of the overtime. Ms. Rubio acknowledged at the outset of the hearing that the monetary claim for overtime prior to 2001 had been settled. She nevertheless submitted that the company’s failure to pay the overtime was evidence of discrimination. [34] The problem is that there is no evidence that the failure to pay overtime was discriminatory in a legal sense. The only evidence before me was that Mr. Filgueira had a conversation with an officer of the company, who said that the company did not pay overtime. But there is no real information relating to other employees. There is nothing in the evidence that would demonstrate that Mr. Filgueira was treated differently than employees in other national or ethnic groups. 2. Retaliation [35] There is also an allegation of retaliation. There are two versions of this allegation. The first is that the company retaliated against Mr. Filgueira because he filed a complaint under the Canada Labour Code. The second is that it retaliated against him because he filed a complaint with the Human Rights Commission. [36] The fundamental factual assertion is that Mr. Filgueira’s overtime was reduced after the previous claim was settled. There is no evidence of this. Mr. Capp went through Mr. Filgueira’s salary record laboriously, paycheque by paycheque. Mr. Filgueira was forced to agree that he worked 80 hours a week during 2001, 2002 and 2003. This was what he was working before the complaint was filed. [37] I should add that the information relating to other employees is completely lacking. There is no evidence that Mr. Filgueira was treated differently than employees in different national or ethnic groups. (c) Conclusions [38] The fundamental requirement on this side of the case is relatively simple. The Complainant must lead some evidence that Garfield treated Mr. Filgueira differently than employees in other national or ethnic groups. The matter is complicated by the fact that Mr. Filgueira changed his position in the course of his testimony and suggested that the real basis of any discrimination was language. I nevertheless agree in the present case that this would be enough to establish discrimination on the basis of national origin. [39] I think the exchanges in cross-examination demonstrate the speculative nature of the claim before me. Mr. Filgueira believed he was being paid less than other employees. On the basis of this fact, he assumed that he was being discriminated against. This was an assumption. Mr. Filgueira was not particularly interested in the reason why he was being treated differently. But of course this is precisely what concerns the Tribunal. [40] The only evidence before me is Mr. Pahar’s remark that he was making a dollar more an hour. Mr. Filgueira was upset by the remark and assumed that he was being discriminated against. I suppose this is within the realm of possibility. But there must be some proof of this. By proof in law we mean something that makes it more likely than not that a particular claim is true. There must be something in the evidence that would support a conclusion in the Complainant’s favour. [41] The question that I am left with is this: if an employee believes that someone in a different ethnic group is doing the same job, and receiving a higher wage, is that enough to establish a prima facie case of discrimination? I think there must be something more. There must be something in the evidence, independent of the Complainant’s beliefs, which confirms his suspicions. I am not saying that a Complainant’s beliefs do not have any evidentiary weight. It depends on the circumstances. But an abstract belief that a person is discriminated against, without some fact to confirm that belief, is not enough. [42] There are always possibilities. This is not sufficient. Proof is something more than a bare possibility. I see nothing in the evidence before me that makes this possibility real or introduces a measurable degree of probability into the equation. [43] I am left with a single statement from Mr. Pahar, who was never called as a witness. I think this evidence falls well below the standard needed to sustain a legal claim. If there is any evidence before me, it is not appreciable. It is so minimal that it has no effect in law. IV. Ruling [44] The test for a non-suit has been met. The application for a non-suit is granted and the complaint is dismissed. Signed by Dr. Paul Groarke Tribunal Member Ottawa, Ontario August 17, 2005 Canadian Human Rights Tribunal Parties of Record Tribunal File: T952/7204 Style of Cause: Ronaldo Filgueira v. Garfield Container Transport Inc. Decision of the Tribunal Dated: August 17, 2005 Date and Place of Hearing: July 11 and 13 to 15, 2005 July 25 to 27 and 29, 2005 Toronto, Ontario Appearances: Ronaldo Filgueira, for himself Consuelo Rubio, for the Complainant No one appearing, for the Canadian Human Rights Commission Harvey Capp, for the Respondent

2005 CHRT 33

CHRT

Brooks v. Department of Fisheries and Oceans

en

2005-08-31

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7124/index.do

2023-12-01

Brooks v. Department of Fisheries and Oceans Collection Canadian Human Rights Tribunal Date 2005-08-31 Neutral citation 2005 CHRT 33 File number(s) T838/8803 Decision-maker(s) Groake, Paul Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE CECIL BROOKS Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - DEPARTMENT OF FISHERIES AND OCEANS Respondent RULING MEMBER: Dr. Paul Groarke 2005 CHRT 33 2005/08/31 [1] Mr. Bagambiire acts for the Complainant. He has requested a formal order directing the Respondent to pay the costs awarded in my previous decision. The Respondent has objected. [2] Section 57 of the Canadian Human Rights Act states: 57. An order under section 53 or 54 may, for the purpose of enforcement, be made an order of the Federal Court by following the usual practice and procedure or by the Commission filing in the Registry of the Court a copy of the order certified to be a true copy. [3] I realize that sections 53 and 54 do not refer specifically to costs. I cannot see that it matters. The normal way of enforcing a decision of the Tribunal is to prepare a formal order, which can be filed with the Federal Court. [4] I agree with Mr. Bagambiire that the issuance of a formal order is an administrative act, which probably comes within the powers of any adjudicative body. The only reason for such an order is to provide a convenient summary of the terms of the award. This provides a clear direction to the public officers charged with executing the award. [5] Mr. Bagambiire goes further, however, and suggests that the Complainant has a common law right to such an order, subject to any objections to its form and content. I am inclined to agree with him. The order adds nothing to my previous ruling and simply declares that a certain decision has been made. It would be capricious to award the Complainant a remedy and then deny him the documentation that he needs to collect it. [6] There is another issue, however. Ms. Cameron acts for the Respondent. She has confirmed that the Respondent is seeking a review of my earlier ruling that the Tribunal has the power to award costs. As it turns out, the same question is presently before the Federal Court in another case. Ms. Cameron says that the situation is uncertain. She is uncomfortable with the idea that the Complainant would attempt to execute a formal order while my authority to issue it is under attack. [7] I agree with the Respondent that it would be better to see what the Court rules before the Complainant tries to execute the order. Having said this, I have come to the conclusion that this aspect of the matter is out of my hands. It seems to me that Mr. Bagambiire is right in saying that I have an obligation to follow my own ruling, and remain steadfast, until such time as the Federal Court rules otherwise. I would be changing my mind if I refused the order. [8] The order will accordingly issue. Signed by Dr. Paul Groarke OTTAWA, Ontario August 31, 2005 PARTIES OF RECORD TRIBUNAL FILE: T838/8803 STYLE OF CAUSE: Cecil Brooks v. Department of Fisheries and Oceans DATE AND PLACE OF HEARING: March 10-11, 2005 Ottawa, Ontario RULING OF THE TRIBUNAL DATED: August 31, 2005 APPEARANCES: Davies Bagambiire Stephen Flaherty For the Complainant Scott McCrossin Melissa Cameron For the Respondent

2005 CHRT 34

CHRT

Communications, Energy and Paperworkers Union of Canada v. Bell Canada

en

2005-09-15

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7123/index.do

2023-12-01

Communications, Energy and Paperworkers Union of Canada v. Bell Canada Collection Canadian Human Rights Tribunal Date 2005-09-15 Neutral citation 2005 CHRT 34 File number(s) T503/2098 Decision-maker(s) Sinclair, Grant, Q.C.; Deschamps, Pierre Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE COMMUNICATION, ENERGY AND PAPERWORKERS UNION OF CANADA AND FEMMES-ACTION - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - BELL CANADA Respondent RULING PANEL: J. Grant Sinclair, Pierre Deschamps 2005 CHRT 34 2005/09/15 [1] This motion is the most recent of a series of motions by Bell for the production/disclosure of documents. [2] In its remedy claim, the complainants, CEP and Femmes-Action, are asking for $1,000 per year, under s. 53(2)(c) of the CHRA, for the pain and suffering experienced by each employee in a CEP female-dominated job class, from February 11, 1990 (or the date they became an employee, if such date is later) until the date of the final Tribunal decision. CEP and Femmes-Action allege that these employees experienced pain and suffering because of the failure of Bell to implement the joint pay equity study and make wage adjustments. [3] To substantiate its claims, the CEP will call as witnesses, six or seven former Bell operators. These witnesses will provide evidence of a representative nature in respect of injury to dignity and self-respect, financial hardship, stress and frustration caused to them, other bargaining unit members and, in some cases their families. [4] Bell's request for disclosure is extraordinary in its scope. Bell asks that these witnesses and their respective spouse(s) or partner(s) produce up-to-date documents showing income, expenses, assets, liabilities for the period extending from February 11, 1990 to the present. More specifically: tax returns; agreements for credit cards, loans, mortgages, lines of credit and other sources of finance used or available and monthly and/or annual statements related thereto; any documents showing dates of birth and retirement, date(s) of marriage(s), cohabitation(s), separation(s), divorce(s), birth of any child and showing any arrangement, agreement or court order for the sharing of income, maintenance, expenses, assets and liabilities such as child support and/or spousal support; any financial statements prepared either for the purposes of applying for financing, for personal or other use; documents showing or relating to any other matters or circumstances having a material effect on the financial circumstances of each witness, including but not limited to, serious illness, accident, fire, choice of vacation destinations and other personal travel. [5] Bell argues that the documents are arguably relevant and required for an understanding of the financial circumstances of each witness during the period in question, so that Bell can conduct a proper cross-examination. [6] Bell also wants to use the financial circumstances of the CEP witnesses to challenge the expert opinion of Dr. Gould as to the appropriate interest rate on any monetary compensation that the Tribunal may award. [7] CEP objects to the disclosure/production of these documents because they are not arguably relevant, they are an unnecessary intrusion into the private life of the proposed witnesses, and these documents or records are privileged and confidential. The Commission takes no position on Bell's motion. [8] In addition to its argument of necessity, Bell also put forward the recent Supreme Court of Canada decision in Smith & Nephew Inc. v. Glegg, 2005 SCC 31 in support of its demands. [9] Glegg did not deal with financial disclosure. It dealt with disclosure of psychiatric medical records. During her examination for discovery, the plaintiff revealed that she had consulted a psychiatrist about 40 times. The defendants argued that the psychiatrist's medical records were relevant and necessary for a full and proper defence. They sought production. The plaintiff objected. [10] In its reasons, the Supreme Court paid particular attention to the provisions of the Qubec Civil Code and the Qubec Charter of Human Rights and Freedom. This aspect of its reasons is not relevant here. [11] What is relevant is the Court's Requirement of relevance portion of its decision. On the question of relevance, the Supreme Court noted that a defendant must show not that the evidence is relevant in the traditional sense, but that disclosure of the document will be useful, is appropriate, is likely to contribute to advancing the debate and is based on an acceptable objective that he or she seeks to attain in the case, and that the document is related to the dispute (at para. 23). [12] As we noted earlier, Bell's request is inordinately over-reaching. For example, Bell asks the Tribunal to order third parties, i.e. spouses or partners to produce certain documents. We have no jurisdiction to make such an order. [13] Further, Bell's motion may require that the witnesses, spouses or partners create documents that do not already exist. We can not require this. [14] Another example of over-reaching is Bell's request that the witnesses produce documents showing or relating to any other matters or circumstances having a material effect on the financial circumstances of each witness. This request amounts to the proverbial fishing expedition. It lacks specificity and requires the witnesses to make a determination of whether any document in the past 15 years has had a material effect on their financial circumstances. [15] The issue for the Tribunal on pain and suffering is two-fold. First, did the complainants suffer any pain and suffering because of Bell's refusal to make wage adjustments; and, secondly, if so, what is the quantum of damages that should be awarded. [16] In their will say statements, CEP's witnesses allege that Bell's refusal to fully address the wage gap has negatively impaired their financial circumstances. This has had certain consequences. For example, some could not make ends meet; some were not able to provide hockey or dance lessons for their children; some had to cash in RRSP's to better assist in their children's education; some could not afford braces for the children's teeth, etc. As a result, they experienced pain and suffering to the tune of $1,000 per witness per year for a number of years. [17] In making this claim for compensation, the complainants are not asking for compensation for financial loss. Rather, their claim is that the alleged financial hardship led to the witnesses experiencing pain and suffering. [18] The onus is on the complainants to establish this link. It is not on Bell to disprove this. In our opinion, the productions sought by Bell would not be useful or advance the debate before the Tribunal. Rather, the cross-examination of these witnesses under oath would provide a more useful evidentiary basis for the Tribunal to decide whether or not the witnesses did experience pain and suffering and if so, what, if any, is the appropriate amount of compensation. [19] As for Bell's argument that it needs these productions to deal with Dr. Gould's expert opinion, the Tribunal notes that Dr. Gould's evidence dealt essentially with the question of the appropriate rate of interest to be applied to any compensation that may be awarded by the Tribunal. [20] Dr. Gould's evidence was general in nature. He did not consider the specific financial circumstances of any of the CEP members. In fact, he opined that the individual financial circumstances of the CEP members were not relevant. [21] For Dr. Gould, it was not important to know where each of the complainants lived, their level of debt, their spending habits, their family situation, etc. [22] Given the financial information he had about the group, i.e. individuals earning between $27,000 - $32,000 annually, Dr. Gould was able to conclude that, as a group, they all had some debt. [23] Dr. Gould's general conclusion as to whether CEP members, Bell telephone operators, had mortgages, consumer loans or credit cards can be easily tested by cross-examination of the CEP witnesses. [24] Further, the validity of any general assumptions or conclusions, rather than specific circumstances, made by Dr. Gould can be refuted by expert evidence from Bell. [25] Bell's motion is dismissed. Signed by J. Grant Sinclair, Chairperson Signed by Pierre Deschamps, Member OTTAWA, Ontario September 15, 2005 PARTIES OF RECORD TRIBUNAL FILE: T503/2098 STYLE OF CAUSE: Communications, Energy and Paperworkers Union of Canada and Femmes-Action v. Bell Canada RULING OF THE TRIBUNAL DATED: WRITTEN SUBMISSIONS BY: September 15, 2005 Peter Engelmann For Communications, Energy and Paperworkers Union of Canada Peter Mantas For Bell Canada

2005 CHRT 35

CHRT

Schecter v. Canadian National Railway Company

en

2005-09-22

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7129/index.do

2023-12-01

Schecter v. Canadian National Railway Company Collection Canadian Human Rights Tribunal Date 2005-09-22 Neutral citation 2005 CHRT 35 File number(s) T881/0104 Decision-maker(s) Doucet, Michel Decision type Decision Decision status Final Decision Content Between: Benjamin Schecter Complainant - and - Canadian Human Rights Commission Commission - and - Canadian National Railway Company Respondent Decision Member: Michel Doucet Date: September 22, 2005 Citation: 2005 CHRT 35 Table of Contents I. Introduction II. Preliminary Matters III. The Complainant’s Witness, Marshall Schecter IV. The Facts V. The Decision VI. Conclusion I. Introduction [1] On August 31, 2002, Benjamin Schecter (the Complainant) filed a complaint against the Canadian National Railway Company (the Respondent). He alleges that the Respondent engaged in a discriminatory practice on the ground of disability by failing to accommodate his relatives and himself in the provision of facilities contrary to section 5 of the Canadian Human Rights Act (the Act). [2] What should have been a very simple matter, unfortunately turned into a confrontational and, at times, aggressive hearing. The ill-feelings and the deep-rooted distrust of the parties towards one another was very apparent and made any logical approach to find a solution difficult, if not impossible. On the other hand, throughout the hearing, the Complainant, BenjaminSchecter, during that part of the hearing in which he participated, and Counsel for the Respondent, Mr. William G. McMurray, acted respectfully towards the Tribunal and towards the other persons present at the hearing. [3] The interruptions and disturbances during these proceedings were mainly the responsibility of the Complainant’s son and witness, Mr. Marshall Schecter. On numerous occasions, he showed disrespect towards the Tribunal and challenged its orders. He did not take lightly to any arguments or opinions which would differ from what he perceived to be the facts or the law. I will, during this decision, elaborate and comment on these circumstances, which eventually culminated in the Complainant leaving the hearing at the insistence of his son. The attitude of Marshall Schecter certainly did not help the Complainant’s case and prevented him from explaining and presenting, in a reasoned and logical manner, the events which brought him before the Tribunal. [4] The Complainant, Benjamin Schecter, is a Queen’s Counsel and a member of the Quebec Bar. He is also a retired judge having served previously on the Quebec Court, criminal division. Moreover he served as a Member of the Canadian Human Rights Tribunal for a period of ten years, retiring a few months before this hearing. I had never met the Complainant before this hearing, nor did I find out before being appointed to hear the case, that he was a former Member of the Tribunal. [5] The Canadian Human Rights Commission’s participation in this hearing was very limited. At the start of the hearing, Mr. Patrick O’Rourke, Counsel for the Commission, informed the Tribunal that the Commission had entered into an agreement with the Respondent which would settle, to the satisfaction of the Commission, the public interest issues in this matter. The Commission saw no need to further participate in the hearing and it informed the Tribunal of its intention to withdraw from the proceedings. II. Preliminary Matters [6] At the outset, the Respondent raised some preliminary issues which I dealt with orally during the hearing. The Complainant also raised an issue relating to the issuance of subpoenas to witnesses. I will now formally address these issues. [7] In a preliminary motion, the Respondent sought an order that the complaint be dismissed on a summary basis. The reasons for this request were threefold: the Complainant had not adhered to the disclosure process of the Tribunal; the issue of public interest which had been referred to the Tribunal by the Commission had been resolved; and the facts set out in the complaint did not disclose any matters which should be determined by the Tribunal. [8] In order to dispose of this preliminary motion, it would be appropriate to review some correspondence exchanged between the parties, the Commission and the Tribunal. [9] The President of the Canadian Human Rights Commission, pursuant to paragraph 44(3)(a) of the Act, requested, on January 6, 2004, that the Acting Chairperson, as he then was, of the Canadian Human Rights Tribunal institute an inquiry into the complaint, as she was satisfied that, having regard to all the circumstances, an inquiry was warranted. [10] On January 27, 2004, the Commission advised the Tribunal that its disclosure of documents in this matter had been sent to the Complainant and to the Respondent. The Tribunal informed the parties, on March 18, 2004, that the case would proceed to hearing and that they were entitled to present evidence and make legal submissions in support of their arguments before the Tribunal. The parties were also provided with copies of the Canadian Human Rights Act, the Tribunal’s Rules of Procedure governing the practices of the Tribunal, a Tribunal’s publication entitled What happens next? A Guide to the Tribunal Process and a questionnaire to assist the Tribunal with the planning of the inquiry. The parties were asked to respond in writing to the questionnaire and were instructed to send a copy of the completed questionnaire to the other parties and to the Tribunal before April 8, 2004. [11] On April 19, 2004, the Tribunal received a faxed copy of the Complainant’s questionnaire. In the section of the questionnaire entitled Remedies sought, the Complainant wrote Forcing principally to provide adequate parking facility at its stations, especially Central Station in Montreal, for handicapped persons. Further down in section 5 of the questionnaire, it was added in writing Damages to be considered. The Respondent’s questionnaire was filed on April26,2004. [12] The Tribunal, as a result of the answers to its questionnaire, issued directions on June2,2004, pertaining to the scheduling of dates for the inquiry and disclosure. The Commission was directed to provide each party with a copy of its file by June 22, 2004. Pursuant to Rule 6(1) of the Tribunal’s Rules of Procedure, the Complainant and the Commission were directed to provide full disclosure by July 16, 2004 and the Respondent was directed to provide its disclosure by August 10, 2004. Furthermore, the parties were made aware of Rule 9(3), which explains that no previously undisclosed issue or evidence is to be led at the hearing Except with leave of the [presiding member] … and subject to a party’s right to lead evidence in reply. [13] The parties were further advised that disclosure includes exchange between them of the documentary evidence and witness lists with will-say statements. It was also indicated that disclosure consist of not only documents a party intends to introduce as evidence at the hearing but those documents arguably relevant to the proceedings, whether or not a party intends to file them as evidence. [14] The parties were also instructed to provide brief written particulars to outline the issues and the evidence that they would submit to the Tribunal. These particulars were to be filed with the Tribunal and copied to all parties by the deadlines which had been fixed. [15] On August 13, 2004, the Complainant forwarded a letter to the Tribunal in which he named five potential witnesses but he did not provide will-say statements for these witnesses. That list did not include the Complainant, his wife or his son, Marshall Schecter. On page 2 of the letter, the Complainant listed the remedies and compensatory damages that he would be seeking at the hearing. [16] The Respondent wrote to the Tribunal on August 17, 2004. It referred to the Complainant’s letter of August 13, 2004, and stated that this letter did not constitute proper disclosure and proceeded to list a series of questions that it wanted addressed. On August19,2004, the Respondent served on the other parties its list of proposed witnesses and documents. [17] On August 23, 2004, a letter was sent to the Tribunal by Mr. Marshall Schecter, the son of the Complainant, in which he objected to certain documents contained in the Respondent’s list. He also provided further details concerning the compensatory remedies the Complainant would be seeking at the hearing and the list of his witnesses. He also indicated that the Complainant would be calling his wife and son as witnesses at the hearing. [18] I will now address separately each of the issues raised by the Respondent in its preliminary motion. I will deal first with the issues of witnesses and disclosure of documents. According to Rule 6(1)f) of the Rules of Procedure of the Canadian Human Rights Tribunal, a party must not only list the names of the persons he wishes to call as witnesses but he must also provide in his disclosure a summary of their testimony. The Complainant never provided this summary for the witnesses he listed in his August 13, 2004 letter. In his August 23, 2004 letter, the Complainant suggested that he also intended to call his wife and his son as witnesses but he did not provide summaries of their testimony. [19] It should have come as no surprise to the Respondent that these two witnesses would be called by the Complainant taking into consideration their close connection to the matters raised in the complaint. Even though a summary was not provided, the Respondent, with the information it had, was definitely in a position to anticipate the substance of their testimony. The purpose of a will-say statement is to prevent the other party from being taken by surprise when the hearing starts. I do not believe that this was the case in regards to these two witnesses and, no prejudice having been caused to the Respondent by the absence of the summary, I ruled that this objection was unfounded. [20] In regards to the other witnesses listed by the Complainant, no summary was provided for them. It is for these witnesses that the Complainant requested subpoenas. According to section 50(3)a) of the Act, only those witnesses whose testimony are necessary for the full hearing and consideration of the complaint will be issued a subpoena and ordered to appear at the hearing of the complaint. With no will-say statement for these witnesses and no reasonable explanation for this failure to respect the rules of the Tribunal, I was not in a position to assess the relevancy of their proposed evidence. [21] It is also important to understand that the issuance of a subpoena by the Tribunal is not an administrative act. The Tribunal has discretion in the decision to issue or not a subpoena. Section 50(3)(a) of the Act states that a member may issue a subpoena if the member considers it necessary for the full hearing and consideration of the complaint. (CTEA v. Bell Canada, T503/ 2098, ruling #2). Accordingly, not being in a position to consider if they were necessary, I refused to issue the subpoenas. I must add that a Tribunal hearing is not a fishing expedition and unless there is a relevant connection between the evidence which is sought from the witnesses for whom subpoenas are required and the matter before the Tribunal, subpoenas will not be issued. [22] I will now address the issue relating to the disclosure of documents. The Tribunal’s primary obligations as it relates to disclosure lies in the need to protect the fairness and integrity of the process. This generally requires full and ample disclosure by the parties. Any exception should be seen as a qualification carved out of the general rule. [23] Under Rule 6(1) of the Rules of Procedure a Complainant who intends to lead evidence or who wishes to adopt a position which differs from that of the Canadian Human Rights Commission must provide in writing: The material facts which he will seek to prove in support of his case. The legal issues raised in the case, including the nature of the discrimination alleged. The relief which it seeks. All documents in its possession which are relevant to any matter in issue in the case and for which no privilege is claimed All documents in its possession which are relevant to any matter in issue in the case and for which privilege is claimed including the grounds for the claim. The witnesses it intends to call, including expert witnesses identified as such, and a summary of their testimony. [24] The rules do provide remedy if a party tries to rely on a document which has not been disclosed. Rule 9(3) provides that if a party does not produce a document which is relevant, that party will not be able to introduce that document into evidence at the hearing except with leave of the Tribunal. Unless the Respondent can establish that the presentation of its case would be jeopardized by the failure of the Complainant to disclose the documents, I see no reason to dismiss the case on this basis. The remedy provided by the rule is sufficient, in my opinion, to cure the defect of non disclosure. If a document not disclosed by the Complainant was deemed essential to the Respondent’s case, the Tribunal would order its production. [25] I fail to see how the allegations of improper disclosure raised by the Respondent could justify an order dismissing the complaint. These procedural requirements are there to protect the fairness and integrity of the process. The Complainant is an officer of the court and a former Member of the Tribunal and he is well aware of the procedures of the Tribunal and he will not be surprised if he is adversely affected if he does not respect them. [26] In regards to the issue of damages, section 53 of the Act provides what remedies are available to the victim of the discriminatory practice, should his or her complaint be substantiated. In this case, that person is the Complainant, Benjamin Schecter. In his disclosure dated August13,2004, the Complainant referred to the remedies he was seeking. The question of whether these would be available to him depends on his ability to present relevant evidence as to the damages that the alleged discriminatory practice of the Respondent caused him. In his questionnaire and disclosure, he also referred to policy remedies which are self explanatory and to compensatory damages which seem to refer to section 53(2)(e) of the Act. I emphasize that these compensatory damages, if any, would be those of the victim, in this case the Complainant. [27] With regards to the second question raised by the Respondent to the effect that the only issue before the Tribunal was the policy issue identified by the Canadian Human Rights Commission, it would be important to clear up some confusion regarding the respective roles of the Commission and the Tribunal. [28] The Commission is not an adjudicative body; that is the role of the Tribunal. When deciding whether a complaint should proceed to be inquired into by the Tribunal, the Commission fulfils a screening analysis. It is not the job of the Commission to determine if the complaint is made out. Rather its duty is to decide if, under the provisions of the Act, an inquiry is warranted having regard to all the facts. The central component of the Commission's role, then, is that of assessing the sufficiency of the evidence before it. [29] The main function of the Tribunal is adjudicative. It conducts formal hearings into complaints that have been referred to it by the Commission. It has many of the powers of a court. It is empowered to find facts, to interpret and apply the law to the facts before it, and to award appropriate remedies. Moreover, its hearings have much the same structure as a formal trial before a court. The parties before the Tribunal lead evidence, call and cross-examine witnesses, and make submissions on how the law should be applied to the facts. The Tribunal is not involved in crafting policy, nor does it undertake its own independent investigations of complaints: the investigative and policy-making functions have deliberately been assigned by the legislature to a different body, the Commission. [30] The Commission refers complaints to the Tribunal. That is exactly what it did in its letter of January 6, 2004. It is clear upon reading the letter from the Commission to the Tribunal’s then Acting Chairperson that all aspects of the complaint were referred to the Tribunal. As my colleague, Member Hadjis, so clearly pointed out in Côté v. Attorney General of Canada, 2003 CHRT 32, one must not lose sight of the fact that although the Commission has the authority to decide whether a complaint is to be referred to the Tribunal (ss. 44(3) and 49 of the Act), the complaint continues to remain the Complainant’s, not the Commission’s. [31] Once it receives a complaint, the Tribunal, in accordance with section 50(2) of the Act, decide[s] all questions of law or fact necessary to determining the matter. In this case, whatever was the intention of the Commission regarding the complaint or the remedies, once it has referred it to the Tribunal, the Commission becomes but one of the parties in the process. [32] This brings me to the third issue relating to some inconsistencies in the complaint, which according to the Respondent illustrates that there is no issue before the Tribunal. I am of the opinion that there is an issue to be heard by the Tribunal and this issue is whether the Complainant has been able to establish that he has been discriminated against by reason of the failure of the Respondent to provide facilities that could accommodate his deficiency. [33] The request by the Respondent that this matter be dismissed on a summary basis is therefore dismissed. III. The Complainant’s Witness, Marshall Schecter [34] Before dealing with the issues, I feel that it is important that I comment on the behaviour of the Complainant’s witness and son, Marshall Schecter. At the hearing, the Complainant chose to call only two witnesses in addition to himself. These witnesses were his wife, Mrs.IrmaSchecter, and his son, Mr. Marshall Schecter. The latter was the important witness for the Complainant, as he was in his words perhaps the only person who can recite the facts […] which took place on the evening in question. Unfortunately for the Complainant, Mr.MarshallSchecter did not live up to that expectation. By his demeanour, short temper, enmity towards not only the opposing Counsel but also towards the Chairperson, his untimely interventions and numerous disruptions during the hearing, he became a very unreliable witness. [35] On the first day of the hearing, the Complainant indicated that, being a lawyer, he would represent himself. This did not stop Mr. Marshall Schecter from interfering in the proceedings and acting as if this was his complaint. The Tribunal, although it could have limited his participation decided, in the erroneous belief that this would facilitate the hearing, to allow him to make representations on behalf of his father. Knowing what it knows now, the decision of the Tribunal might today be different. [36] At the start of the hearing, Marshall Schecter intervened to indicate that documentation provided to the parties by the Tribunal had not been received by him. The Tribunal’s files indicate that the letter in question dated March 18, 2004 was sent, with the accompanying documents, to the Complainant’s address. [37] Again, on the first day, during the Respondent’s arguments on its preliminary motions, Mr.Marshall Schecter interrupted Counsel and said: Excuse me. Are we going to be listening to this, or are you supposed to be ruling on this. Because he is presenting his case at this point in time. At another time, he accused opposing Counsel of not telling the truth and called him a liar. He also characterised a potential witness of the Respondent as a bigot. [38] On August 31, 2004, the second day of the hearing, the issue of disclosure of documents came up. The Respondent requested copies of various documents which were referred to in the Complainant’s disclosure. One particular document sought to be produced was a letter signed by Mr. Marshall Schecter addressed to Mr. Charles Unterberg of the Canadian Human Rights Commission. It referred to pertinent information concerning … the complaint at Central Station in Montreal on June 7. It then proceeded to list four letters and gave the number of pages attached to those letters. One of those letters was on the letterhead of the law firm Berkovitz and Strauber, and it was signed by the Complainant. It indicated that there were documents enclosed with it. The Respondent was asking that copies of these attached documents be provided. [39] Marshall Schecter at first indicated that he was in the process of moving and that a lot of these documents were in storage and he might not be able to find them. The Tribunal indicated that these documents would have to be produced by September 2, 2004 or an explanation why they could not be produced would have to be given. After a short adjournment, Marshall Schecter returned and indicated that these documents could not be produced on September 2, 2004, because his printer had told him that he could not do the copies by that time. [40] The Tribunal then proceeded to order that on Thursday September 2, 2004, the documents with the necessary copies be produced. The following exchange then ensued: Mr. M. Schecter : Excuse me. I am sorry to interject. I cannot comply with it. I – The Chairperson : Well, then at that point – Mr. M. Schecter : Excuse me. May I finish, please. I called the printer, they – The Chairperson : There are --- Mr. M. Schecter : I called Banner Blueprint who I use for my architecture, I know these people. I have been dealing with them for 20 years. It will take at least three days to get them, if I bring them over this evening. I can’t get them done any quicker, and I’m putting myself on Record. The Chairperson : I am also a lawyer, and I have been asked to do things on very short notice, and it was done. There are more than one copier in the City of Montreal, I’m sure. […] My Order is that those documents be exchanged onThursday morning. If not, I will adjourn at that time. Mr. M. Schecter : Then I ask for an adjourn— The Chairperson : This is my Order. Mr. M. Schecter : Then I ask to – if we could have it postponed until next week, please? The Chairperson : It won’t be postponed until next week. It will bepostponed until the parties have done full disclosure, and then we will see what dates will be set. Mr. M. Schecter : Then I suggest we do that right now, please. The Chairperson : Then this will be adjourned sine die. Mr. B. Schecter : May I have – may I have a word,…[…] Mr. Chair. I am aware of the difficulties which my son has mentioned to the Tribunal, and I want to tell you one thing, he acts in most cases, as fast as any human being can, and I know that it will be physically impossible to have everything that we are discussing now to be prepared on Thursday. He checked on the telephone, and – it is not an effort to conceal or to delay anything. The Chairperson : I know that, Mr. Schecter. But, we are talking about one copy at this point of those documents to be produced. Mr. M. Schecter : One or six is the same. The Chairperson : Well, six copies will be when the evidence will beintroduced in front of the Tribunal. We are not there yet. We are talking about one copy to be provided to the other party. I will be back here on Thursday morning, and if the parties are not ready at that time to provide those documents, I willadjourn this matter, and wait until all proper – I will not accept – this Tribunal is an important Tribunal, and you know that, Mr. Schecter. Mr. B. Schecter : Oh, yes. Indeed. The Chairperson : You understand that this case, will not be turned into something that it is not. It is a judicial proceeding, and we will respect the rules of the Tribunal. At that point, I am suggesting that these documents be exchanged on Thursday morning. There is 48 hours. If it cannot be done, then it will be adjourned. […] Mr. M. Schecter : For all documents. They cannot be done. The Chairperson : Your son has the list of the documents that we arereferring to. So, I will be back here on Thursday morning, and we will see where the parties are at. So, this concludes the matter for today, unless there areother issues. […] Mr. M. Schecter : […] I just want to mention on the Record that I will not be able to provide all the documentation. The Chairperson : Well, you will explain to the Tribunal at that time why you are not able to provide those documents on the 2nd. But we will reconvene on the 2nd and we will see where we are at. [41] The documents were produced and provided to the Respondent on Thursday, September2, 2004, as ordered. [42] On September 3, 2004, a motion was filed by the Respondent regarding the production of other documents which had been filed with the Bureau d’éthique professionnelle of the City of Longueil Police Service, concerning agents Greffard and Sauvé, and the events of June 7, 2001 at CN Central Station. Mr. Marshall Schecter objected to the production of these documents arguing that the information contained in them was privileged under the Young Offenders Act, S.C., c. Y-1 [Repealed, 2002, c. 1, s. 199.]. These events had been raised in the complaint and in a letter addressed to the Tribunal on August 13, 2004 by Mr. Marshall Schecter. [43] In the complaint they were referred to as follows: At this time, my wife and grandson were confronted by Montreal UrbanCommunity (MUC) policemen. One of the policemen grabbed mygrandson, threatened him, shoved his knee violently in my grandson’s back and slapped his face several times… My son [Marshall Schecter] tried to intervene but another policeman pushed him brutally. My wife was in shock and in tears and tried to obtain explanation from thepolicemen who became very aggressive; one of the policemen punched her in the chest and another pinched her left arm. [44] Again in a letter dated August 13, 2004, signed by Mr. Marshall Schecter as [representative] of [his] family’s interest under the heading Compensatory Damages, we read: For the cruel and brutal beating, and arrest of my son, and assault charge laid against him, a minor, initiated by C.N. and an ex employee of C.N, to create leverage inorder to abandon our case. The assault case against my minor son was later dropped by the Crown. For the physical and vicious assault against my Mother and myself, and the needless pushing my Father (handicapped) into a paddy wagon by 4 black gloved C.N.Security Guards plus 4 police officers. The psychological pressures which have affected my entire family, the arrogance of C.N., the denigration and lack of respect against my family, and particularly my Father who has a stellar reputation in Law for 65 years. Also, the constant harassment by C.N. until the present day. The compensatory damages sought is the maximum prescribed by law under the Commission’s sic power, multiplied by four, that is my son, Mother, Father andmyself. [45] These events having been raised by the Complainant to justify his request for compensatory damages, documents concerning them became arguably relevant and had to be disclosed unless they were privileged. Having heard the parties’ arguments on this matter, the Tribunal proceeded to order that the document filed with the Bureau d’éthique professionnelle of the City of Longueil Police Service concerning agents Greffard and Sauvé, and the events of June 7, 2001 at CN Central Station be disclosed and, in order to address the concerns of the Complainant concerning his grandson, I ordered that any information concerning a minor which might be included in that document be removed. It was further ordered that the Respondent consult the document for the purpose of this hearing only and that it not disclose its content to anyone other than its Legal Counsel. [46] At this point, Mr. Marshall Schecter became very aggressive and voiced strongly his intention not to comply with this order to a point where his father had to interject and tell him That’s enough. Later on during the day, this whole matter concerning compensatory damages for the Complainant and his family was resolved when the Complainant acknowledged that the only person who could ask for compensatory damages was himself, if his claim was substantiated. The claim for compensatory damages referred to in Mr. Marshall Schecter’s letter of August13,2004 for his mother, his son and himself was dropped by the Complainant. [47] Later on during that same day, Mr. Marshall Schecter objected to the presence in the room of a gentleman from the Police Department saying that he did not want him in the hearing. The following exchange followed: The Chairperson : Are you asking for an exclusion of witnesses? Mr. M. Schecter : I’m asking for his exclusion because we haven’t accepted him as a witness yet -- because this is a situation pertaining to [redacted] again and [redacted] is relevant in there and it is against the Young Offenders Act. The Chairperson : Mr. Schecter, it’s a public hearing. Unless you ask for an exclusion of witnesses, it’s a public… Mr. M. Schecter : Well this is Mr. – are you Mr. Desève? Well if he’s Mr. Desève, his name is one of the witnesses. The Chairperson : Are you asking for an exclusion of witnesses? Mr. M. Schecter : I’m asking for his exclusion in this courtroom. The Chairperson : I’m not going to exclude one witness. Are you asking for an exclusion of witnesses? Mr. M. Schecter : Well, why should he be able to come into this testimony since he wasn’t there, he has nothing to do with the situation but he’s bringing a document in, again, against [redacted]. So what I would suggest we do at this point, if you don’t mind me saying, and I’m not a lawyer but I want to put forth, and let’s discuss the Young Offenders Act. I don’t want to argue but I’m telling you that it’s pertaining because he’s put it in evidence and I’ve seen that document from the Crown. So we’re going back again and I never gave it to CN. The Chairperson : If they are documents pertaining to [redacted] that they will be trying to produce in evidence, you’ll be able to raise those objections then. This morning when I’m talking about disclosure of documents, it doesn’t mean that they’re in evidence. Mr. M. Schecter : I’m not going to sit here for days after day and talk about [redacted], okay. […] Well, we came down here to testify. Either we testify or we leave. Please let us know and let’s get on with the case. [48] The Complainant was then asked to call his first witness, Mr. Marshall Schecter again interjected: Mr. M. Schecter : Well then, go ahead. They wanted to call my father. The Chairperson : No, it’s your –it’s your case, Mr. Schecter. […] Mr. B. Schecter : Well, that’s up to me then because I’m the Counsel here and whether or not I will wear two hats later on is another matter but I’m Counsel and we’re ready to – we’re ready to start. Mr. M. Schecter : One of the reasons we cannot call any witnesses because we were precluded by CN and the Police Department from getting any witnesses. Mr. B. Schecter : Well, that will come in evidence… Mr. M. Schecter : Exactly. So right now we have nobody to call. [49] Notwithstanding his son’s comments, the Complainant then proceeded to present his evidence. [50] On September 10, 2004 there was another strong intervention by Mr. Marshall Schecter regarding a line of questioning from Respondent Counsel that he found disrespectful towards his father. His father then indicated to his son that if there were any objections to be made that he would make them. He also stated that sometimes his son gets a little overzealous in his protection of him. [51] On September 23, 2004, during his mother’s testimony, Mr. Marshall Schecter again interrupted the proceedings and proceeded to explain the evidence given by his mother concerning the physical layout of an apartment building in which the Complainant and she had lived. According to Mr. Marshall Schecter, he had the right to object since Counsel for the Respondent was giving erroneous information. The Chair had to explain to Mr.MarshallSchecter that his father was representing himself and that if he so wished, he could in reply ask the witness to correct the information if it was erroneous. [52] The hearing adjourned on September 23, 2004 and only reconvened on May 9, 2005. On that day, Marshall Schecter was the Complainant’s witness. He was a most recalcitrant witness and, at times, aggressive and antagonistic. [53] In actual fact, what infuriated the witness was my questioning as to where he was parked on the day of June 7, 2001. The witness did not seem to realise that the adjudicative process in our adversarial system relies on viva voce testimony adduced from witnesses examined before the trier of facts, in this case, the Presiding Member of the Tribunal. In general terms, it is the role of the parties, not the Tribunal, to call and examine witnesses. While the presentation of evidence is left to the parties and Counsel, the trier of facts has the right to question witnesses. In fact, I would add that it is its duty to do so if he or she is of the view that the examination is necessary in order to properly evaluate the witness’ evidence. In his questions, the trier of facts is not limited to queries designed to clear up doubtful points, but can extend the questions to matters not dealt with in Counsel’s examination of the witness. (See Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 2nd edition, at section 16.9.) These were the reasons for the questions I put to the witness. I felt that the examination-in-chief was incomplete and a lot of points which should have been dealt with were still unanswered. [54] When first asked where he was parked the witness said that he could not accurately indicate the precise location. In order to assist him, I asked him to look at a drawing of the Central Station Complex which had been introduced in evidence. I then asked him again if he could show me where he was parked and he answered: In this vicinity. I can’t say accurately… For my benefit, when I would be reviewing the evidence, I asked him to put his initial next to the area he had pointed to and that is when things got out of hand. He said that he’d rather not do as he was asked because he did not want to be held to it. He further added that If I go down there and measure it, then I’ll be happy to do it. The following exchange then followed: The Chairperson : Could you just initial right there, your initials--Marshall Schecter--just to indicate at about where you were… Mr. M. Schecter : I’d rather not. The Chairperson : Well, I would ask you to do it to indicate… Mr. M. Schecter : I don’t want to be held to it. I don’t want to be held to it, because I know I was around here... [55] The witness was forgetting that he was under oath and that he would be held to the evidence he was giving and if this evidence was not clear then it would be difficult for me to make a ruling in the Complainant’s favour on this issue. [56] The witness then started to be argumentative, raised his voice and again challenged my authority. The exchange continued: The Chairperson : So, you can’t indicate precisely where you were? Mr. M. Schecter : If I go down there and measure it, then I’ll be happy to do it. The Chairperson : Okay, I’ve got no evidence of exactly where you were parked at that point. Okay. Mr. M. Schecter : I would like to say that I want to have that measured, and then I’ll come back and I will tell you, is that all right? […] Well--well, listen, you’re asking me to put my – I don’t know the scale of the plan…[...] and if we’re going to get into technicalities, I have the right and I want it on record that I want to know what the scale is and I’ll measure it off, and then I’ll sign it. But… The Chairperson : The scales are not important. The only thing… Mr. M. Schecter : To me, yes, they are, sir. If we’re talking technicalities, they are. The Chairperson : Okay, sir, if you -- the evidence I’ve got is put in today, this is what I’m getting, and I’m not getting… [Interrupting me in mid-sentence.] Mr. M. Schecter : [In a strong voice, almost yelling] Well, no, then, I’m sorry, we -- I’ don’t want to proceed without having the opportunity to take… The Chairperson : Sir, I decide if we’re going to proceed or not. Mr. M. Schecter : [Shouting] No, I decide. The Chairperson : No, you’re the witness! [57] I then tried to bring back order, but to no avail. To avoid a shouting match with the witness, I decided to adjourn the hearing for five minutes, hoping that this would cool him down. [58] When the hearing resumed, the Complainant offered his apologies for what had just happened but his wife interjected and said that there’s no apology necessary. The Complainant tried to explain his son’s behaviour but the witness did not let him finish and continued in the same way he had before the break. At one point the Complainant again intervened telling his son in a stern voice: That’s enough now…, but with no success. The witness then proceeded to threaten me by saying that he would make a full report of the events to the Tribunal, the Bar Association, and everything else because that’s unethical and immoral. And that’s it, no more discussion. Again his father intervened telling him Just a moment, there’s going to be cross-examination, just listen to Mr. McMurray, now. [59] At that point, Mr. McMurray asked for a break to prepare his cross-examination. Since it was 11:28 a.m., I decided to break for lunch. I was hoping that this would provide the witness time to cool down and to reflect, with the guidance of his father, on his demeanour during the hearing. Again the witness challenged this decision saying in a loud tone Excuse me, I have a meeting at three o’clock (3:00) and we have… I called the hearing to order but again the witness interjected aggressively: Let’s go, finished! I won’t be back, don’t waste your time! [The exclamation marks are those of the Court Reporter.] [60] Unfortunately, in the afternoon the Complainant and his witness did not return to the hearing and the Respondent was deprived of his right to cross-examine the witness. I then proceeded to adjourn the hearing until the next morning. [61] That same afternoon of May 9, 2005, under my instructions, a letter signed by GregoryM.Smith, the Registrar of the Tribunal, was personally served on the Complainant. An Affidavit of Service sworn to by Michel Fiset, a sworn Bailiff of Justice of the Province of Quebec was filed before the Tribunal. In this affidavit, Mr. Fiset stated that he had personally served the Complainant with a copy of the letter on May 9, 2005 at 7:26 p.m. at his domicile. The letter in question informed the Complainant that the Tribunal had adjourned the hearing until 9:30a.m. on Tuesday, May 10, 2005 and that, should the Complainant not be present at that time, the Tribunal would proceed with the hearing of the complaint in his absence. The letter also informed the Complainant that the Tribunal would not tolerate any further outbursts from the Complainant’s witness, Mr. Marshall Schecter. I am satisfied on the basis of this evidence that the Complainant did receive adequate notice that the proceedings would resume on May 10, 2005 and that he chose not to attend. [62] On May 10, 2005 and for the following days of the hearing, the Registry Officer started the hearing by asking if Benjamin Schecter, the Complainant, or anybody representing him, was present in the hearing room. The record of the hearing reflects that no response was received to these enquiries. [63] The Complainant was given a full and ample opportunity to appear at the hearing, present evidence and make representations. Without giving any reasons for his decision or filing a motion before the Tribunal to withdraw his complaint, he decided to ignore the instructions given in the Tribunal’s letter of May 9, 2005 and chose to withdraw from any further participation in the hearing. By doing so the Complainant relinquished his rights therein to appear, present evidence, cross-examine the Respondent’s witnesses and make final arguments. [64] For its part, the Respondent chose to participate fully in these proceedings and it should not be prejudiced by the Complainant’s decision not to do so. [65] In accordance with the power vested in me by the Act to decide any procedural or legal questions arising during the hearing, I decided to proceed in the absence of the Complainant. I felt that it was important, for all parties involved, that the issue come to a final conclusion. A lot of time, preparation and financial resources have been devoted for the preparation of the hearing and for the hearing itself and it was my opinion that these could not be wasted because one witness decided that he was not going to participate anymore. (For decisions of the Tribunal where hearings proceeded in the absence of one of the parties see : Fox v. Musqueam Indian Band & Hargitt, 2004 CHRT17 (CanLII); Sanusi v. Brown, 2004 CHRT 33 (CanLII); Groupe d’aide et d’information sur le harcèlement sexuel au travail de la Province de Québec Inc. and DesRosiers v. Barbe, 2003 CHRT24 (CanLII); Woiden, Flak, Yeary and Curle v. Lynn, 2002 IIJCan 8171 (CHRT); Warman v. Kybur, 2003 CHRT 18 (IIJCan); Chiliwack Anti-Racism Project Society v. Scott and Churst of Christ in Isreal, 1996 IICan 1793 (CHRT); Khaki and Elterman v. Canadian Liberty Net, 1993 IIJCan2806 (CHRT)). [66] It is unfortunate that the Complainant, a former judge and a former Member of the Tribunal, made the decision to withdraw from the hearing. But in fairness to him, having seen and heard what occurred on that day and on the previous days, I am still not convinced that he made that decision of his own free will. Be that as it may, the Complainant fully understands, I am sure, the consequences of this decision. [67] Regarding the evidence given by Marshall Schecter, since the Respondent never had the opportunity to cross-examine him, the relevance and weight of this evidence will be very limited. IV. The Facts [68] The Complainant suffers from a chronic degenerative disease of the lumbar spine. Although, no medical evidence was submitted, the medical condition of the Complainant was not challenged by the Respondent and the Tribunal concludes that he does suffer from a deficiency. [69] In 1999, the Société de l’assurance automobile du Québec sent him a Certificat d’attestation and a parking tag for disabled persons to hang from the rear view mirror of his car. [70] The Complainant conceded that his knowledge of the events which forms the basis of his claim is limited, as he was not present during most of these and that a good deal of the information he has regarding these events came from his son. On many occasions, the Complainant put emphasis on the fact that most of the correspondence, calls and communications concerning this matter were done by his son. [71] The Complainant’s wife was not very helpful as a witness. She admitted that she also had a limited knowledge of the events and that she relied on the information given to her by her son. Also, her conduct as a witness did not help the Tribunal’s task in finding out the facts. She was very argumentative and at some point showed impatience with Counsel and with the Tribunal. [72] During his tenure as a Member of the Canadian Human Rights Tribunal, the Complainant was required to travel to Ottawa to hear cases. On these occasions he and his wife would travel by train leaving from CN Central Station in Montreal (Central Station). The Complainant and his wife testified that they had made the trip between Montreal and Ottawa by train at least a hundred times. Apart from June 7, 2001, the Complainant admitted that they had always been satisfied with the services provided at Central Station. [73] On their return to Montreal, their son, Marshall Schecter, would come and pick them up at Central Station. According to Mr. Marshall Schecter he had been at Central Station for the last ten (10) years – approximately twenty five to thirty (25-30) times a year, coming and going, so it would make it fifty to sixty (50-60) times a year. Dropping-off his parents at the Central Station could take between five (5) to ten (10) minutes and picking them up between fifteen (15) and twenty (20) minutes. He also admitted that before June 7, 2001, he never had an incident at the Central Station. [74] Mr. Michel Legault, who during the period relevant to this hearing was the Director, Special Projects, Canada and U.S, for the Respondent, testified as to the physical layout of Central Station. Central Station is owned by the Respondent. Its purpose is mainly to provide access to the trains for the passengers of VIA Rail, Amtrak and AMT. [75] Geographically, the Central Station Complex is situated in a square bordered to the north by Boulevard René-Lévesque, to the west by Mansfield Street, to the east by Université Street and to the south by la Gauchetière Street. To the south of complex the Complex there is an entrance in the shape of a horseshoe which allows egress and ingress to Central Station from de la Gauchetière Street. The horseshoe also serves as an access route for emergency vehicles. There is no public parking in the horseshoe, although taxis that provide services to the passengers coming to Central Station are allowed to park there, as well as vehicles belonging to Budget Rent-A-Car. Some parking spaces are also reserved for the executives of the Respondent and of VIA Rail. [76] The horseshoe area is supervised by security guards who, although they are employees of a third party, are under the control of the Respondent. One of the purposes for the presence of these security guards is to make sure that there is a continuous flow of traffic through the horseshoe area. According to Mr. Legault, there is a policy of tolerance in the case where someone is helping somebody with restricted mobility or if they have a lot of luggage. In those circumstances, the security guards will allow the car to be left unattended for a few minutes so as to let the driver help the passenger get into Central Station or remove some luggage from the car. [77] In the middle of the horseshoe there is a privately operated public parking lot accessible through la Gauchetière Street. It is also referred too as the South Plaza parking. There is another parking garage, the Belmont Garage which is accessible by Mansfield Street and University Street. [78] The Belmont Garage is situated directly above the South Plaza parking. It has four (4) levels and a roof parking. Central Station is accessed from this garage by elevators and a stairway. The elevators give access to the eastern portion of the horseshoe next to the main entrance of Central Station. [79] There are no public parking spots designated as handicapped in the South Plaza parking, but in the Belmont Garage two parking spots per floor, except for the roof, are designated as such. These parking spots are situated near the elevators, so that when disembarking, the elevator will be readily available for the driver and passengers of the vehicle. Once in the elevator they will be directed to the ground floor of the Belmont Garage where they will have to switch elevators to move to a second one which will bring them to the Central Station level. [80] To facilitate mobility in and out of Central Station there are no curbs at the main entrance. The entrance is also equipped with automatic doors. Benches are available for people to sit on while they wait. VIA’s personnel, called Red Caps, are available to help passengers with their luggage. [81] Regarding the physical features of Central Station, the Complainant testified that there was no difference on June 7, 2001 than what he had noticed on his previous visits. [82] On June 7, 2001, the Complainant and his wife were returning by train to Montreal from Ottawa. The train was due to arrive at Central Station at 5:08 p.m. According to the evidence, VIA Train number 34, coming from Ottawa, arrived on that day, at 5:15 p.m., a seven (7) minutes delay. There were 93 passengers on board the train. At approximately the same time (5:06 p.m.), Train 60 from Toronto pulled into Central Station with 284 passengers on board. [83] Marshall Schecter’s recollection of the events that followed his arrival in the horseshoe on June 7, 2001 is different from that of the security guard, Éric Geoffroy, who was on duty in the South Plaza on that day. In view of the fact that the Respondent never had a chance to cross-examine Marshall Schecter and because of the conduct and behaviour of this witness which rendered his testimony unreliable, in case of conflict, the evidence of Mr. Geoffroy will be preferred. [84] Marshall Schecter testified that he arrived at Central Station on June 7, 2001 at 4:57 p.m. Neither the Complainant, nor his wife could confirm this. In cross-examination the Complainant explained that he doesn’t know from personal knowledge if the car was parked for more than 15minutes or not. He added I only know from my son that he was there at 4:57 and that he would be in a better position to answer this question. Unfortunately, because of his decision to leave the hearing, this never happened. [85] In the Incident Report he prepared on June 7, 2001, Mr. Geoffroy specified that Mr.Schecter arrived at Central Station at 4:40 p.m. I see no reason to doubt the evidence given by Mr. Geoffroy on this point. He presented himself as a calm and disinterested witness and referred to his notes which were contemporaneous to the events referred to in the complaint. The Complainant had the chance to cross-examine Mr. Geoffroy but in deciding to withdraw from the proceedings, he relinquished this right and the evidence of Mr. Geoffroy remained unchallenged. I will accept Mr. Geoffroy’s evidence that Marshall Schecter arrived at the station around 4:40 p.m. and not at 4:57 p.m. [86] Marshall Schecter testified that a security guard of the Respondent approached him within sixty seconds of his arrival at Central Station and asked him could you move your car please? His answer was No, I won’t. He said that he then asked the security guard why he should move his car and the answer was Because you’re blocking. He replied that he would move the car about one or two car lengths but according to him this did not satisfy the security guard. At that point, he said that he hung the handicap vignette on the rear view mirror and stated I’m not moving at all. He added that the security guard then started to harass him and went into a rage. [87] When asked where he was parked on that particular day, Marshall Schecter never gave a precise answer. When he was requested to indicate on a drawing of the Central Station Complex where he was parked and to put his initial next to the area indicated, he answered I’d rather not. The events that followed have been touched on in another part of this decision and there is no need to go over them again, except to add that the Tribunal was never given any evidence by the Complainant’s witnesses as to where the car was parked on that day and can only draw a negative conclusion from this absence of evidence. [88] Mr. Geoffroy did not deny that he approached Mr. Schecter’s car upon its arrival. He added that the car was parked on the north side of the horseshoe, very close to the main entrance to Central Station. [89] He said that he approached the vehicle and asked the driver what he was waiting for since there was no train arrival expected at that time. He added that Marshall Schecter answered that he was there to pick up his father who was arriving on the Ottawa train and who had difficulty walking. Mr. Geoffroy then asked him to come back at 5:00 p.m. since the waiting time is not more than five (5) minutes in the horseshoe. Marshall Schecter answered that he was not going to move and then took the vignette for handicap parking out of the glove compartment and hung it on the rear-view mirror. [90] Mr. Geoffroy testified that in order to appease the situation, he suggested that Mr. Schecter move his vehicle up thirty (30) to thirty-five (35) feet so that it would not block the traffic. Mr.Schecter again refused. [91] Mr. Geoffroy added that Mr. Marshall Schecter and his son then became verbally aggressive and he decided to call a colleague as back up. By this time it was around 5:00 p.m. His colleague tried to communicate with Mr. Schecter but to no avail. The decision was then made to call the Montreal Urban Police. The first police car arrived on the scene at 5:10 p.m. Mr. Geoffroy proceeded to explain what had just happened and then the police officers took control of the situation. He added that his colleagues and him remained as interested observers but did not intervene in the events that followed. [92] The situation having escalated, the police officers called in reinforcement and, soon after, two more police vehicles arrived at the scene. The Complainant and his wife were not present in the horseshoe area during these events. [93] Upon arriving at Central Station from Ottawa, the Complainant and his wife testified that it was their routine to wait after the other passengers had gotten off the train before detraining. The Complainant admitted that he cannot walk very fast because of his deficiency. From the train platform to the main concourse of the station, he would take the escalator since he always avoid[ed] stairs whenever possible. He also added that before leaving Central Station, he would go to the men’s washroom and when he came out his grandson would escort him to his car. [94] Mrs. Schecter testified that the detraining on June 7, 2001 took between seven to ten minutes. So when they got off the train, which arrived at 5:15 p.m., and up the escalator, it would have been close to 5:25 p.m. The Complainant then had to walk to the washroom and after proceed to the horseshoe area. [95] According to the evidence of the Complainant and that of his wife, on June 7, 2001, they met their grandson at the top of the escalator. The Complainant’s wife said that she could see that he was nervous, although she did not say if she questioned him at that time about the reasons for this nervousness. The Complainant said that he then proceeded to the washroom accompanied by his grandson. [96] The evidence of the Complainant’s wife on what took place thereafter is interesting. She testified: he [the grandson] walked my husband to the men’s room where we left my husband and [my] grandson proceeded to escort me to our car where my son was waiting for us. (The emphasis is mine.) Why did she not wait for her husband or ask her grandson to do so in view of her husband’s condition and the fact that on many occasions during her evidence she stated that her husband depended on her to move around? She certainly did not need to be escorted back to the car as there is no evidence that she cannot walk by herself. She later added that they had completely forgot[ten] about the fact [that they had] left my husband in the men’s room. This behaviour is certainly perplexing in view of the evidence given at the hearing pertaining to the difficulty that the Complainant has to walk unassisted. One would have expected that either Mrs.Schecter or the grandson would have waited for the Complainant to come out of the washroom. [97] The Complainant testified that when he came out of the washroom, there was nobody there to help him. He added that a young stranger helped him walk back to the parking area, where he noticed that his grandson was being detained in a police van. He stated that he appealed to the policemen who, upon his request, released his grandson. [98] The evidence of the Complainant and that of his wife does not coincide with the evidence of Mr. Geoffroy. According to his report, neither Marshall Schecter, nor his son, were allowed to enter Central Station on June 7, 2001. He testified that the younger Schecter had, before the police arrived, attempted to enter Central Station but was prevented from doing so. He further indicated in his report that the Complainant and his wife arrived at the main entrance of the South Plaza together just when the two other police vehicles were arriving at the scene. [99] He added that there was a lot of yelling and that his colleague and he stayed out of the way and let the police officers deal with the situation. At one point, he noticed that the Complainant was talking with one of the police officers about the situation pertaining to his grandson. The officers released the grandson in his grandfather’s care at about 5:30 p.m. Mr. Geoffroy added that Marshall Schecter then turned towards him and told him You’ll pay for this. [100] The Complainant also testified that at some point he was put into a City of Montreal police car or van. He also testified that his wife drove away in their car and that he stayed behind with his son and grandson. [101] The Complainant’s wife added that her husband was discarded like a piece of worthless meat by the Respondent’s security guard. She added that she was ordered by a CN security guard to remove the car and to park outside the horseshoe area. Again this is an interesting comment considering the fact that during cross-examination, when asked if she recalled where the car was parked on June 7, 2001, she answered: How can I remember? When I got there I never saw a car. All I saw were policemen fighting and pushing. Later she added: I know it was passed—I did not see it near the horseshoe. It was parked much further because the altercation happened close to the entrance. […] I didn’t see the car there, so it must have been further away. (The emphasis is mine). If she had to move the car as she testified, she had to know where it was parked. [102] The Complainant’s recollection of the events that followed was that he was later delivered by a police vehicle to where his wife had gone to park the car. He could not remember where the car had been parked by his wife or how the police officers knew where she had parked the car. The Complainant’s wife added that her husband was brought to her about half an hour later in a police car but she did not indicate where she was parked or how the police knew where to find her. She then said that they proceeded back to the Central Station to pick up her son and grandson. [103] This evidence does not correspond with the recollection that Mr. Geoffroy has of the incident. According to his report, the Schecter’s vehicle remained parked at exactly the same spot throughout this entire confrontation and it was never moved by anybody. He further added that the whole family left together in the car at 5:35 p.m. [104] On June 12, 2001, the Complainant’s wife prepared a handwritten statement of what happened on June 7, 2001. In this statement, she makes no reference to the Respondent or any of its employees or to the fact that the Complainant was put into a police vehicle. This is most surprising bearing in mind her evidence at the hearing that they were grabbed by security guards and not policemen, that they pushed my husband […] into a paddy wagon and that the security guards discarded [him] like a piece of worthless meat. One would have expected, considering the seriousness of these accusations, that she would have mentioned these in her handwritten notes. But nowhere in these notes are there any references to these events regarding her husband and the Respondent’s security guards. [105] It is also important to note that nowhere in the Complaint Form are there any references to these incidences pertaining to the Complainant. On the contrary, on reading the complaint one has the impression that the arrival of the Complainant at the horseshoe area had some appeasing effect. The Complainant states in his complaint: In the meantime, when I came out of the washroom, there was nobody there to help me. A young stranger helped me walk to the parking area where I saw my grandson detained in a police van. I then appealed to a MUC policeman and, upon my request, my grandson was released. The complaint continues I consider that the Canadian National Railway Company discriminated against me by not providing parking spaces designated specifically for vehicles with a parking tag for disabled persons. As a consequence of the lack of accommodation, my wife, Irma Schecter and my son, Marshall Schecter were assaulted and my grandson, Myles Schecter was assaulted […]. Again there is no reference to an assault on the Complainant by employees of the Respondent. [106] Consequently, I find that Mrs. Irma Schecter’s testimony regarding her husband being pushed and discarded by the Respondent’s security guards is totally unfounded and unsupported by the evidence. V. The Decision [107] In his complaint the Complainant alleges that the Respondent engaged in a discriminatory practice on the ground of a disability by failing to accommodate his relatives and himself in the provision of facilities contrary to section 5 of the Act. [108] Section 5 provides: 5. It is a discriminatory practice in the provision of goods, services, facilities oraccommodation customarily available to the general public to deny, or to deny access to, any such good, service, facility or accommodation to any individual, or to differentiate adversely in relation to any individual, on a prohibited ground of discrimination. [109] Numerous decisions have indicated that the Act should be given a large and a liberal interpretation consistent with its quasi-constitutional status and in a manner that ensures the attainment of its objectives. The purpose of the Act is set out in section 2: 2. The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with otherindividuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties andobligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted. [110] In Ontario Human Rights Commission v. Simpson-Sears, [1985] 2 S.C.R. 536, at page 547, the Supreme Court addressed the issue of the purpose of a human rights act in this manner: The accepted rules of construction are flexible enough to enable the Court torecognize in the construction of a human rights code the special nature andpurpose of the enactment […] and give to it an interpretation which willadvance its broad purposes. Legislation of this type is of a special nature, not quite constitutional but certainly more than the ordinary—and it is for the courts to seek out its purpose and give it effect. The Code aims at the removal ofdiscrimination. This is to state the obvious. Its main approach, however, is not to punish the discriminator, but rather to provide relief for the victims ofdiscrimination. [The emphasis is mine.] [111] In Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84, the Supreme Court added, at paragraph 8: The purpose of the Act is set forth in s. 2 as being to extend the laws of Canada to give effect to the principle that every individual should have an equal opportunity with other individuals to live his or her own life without being hindered bydiscriminatory practices based on certain prohibited grounds of discrimination […] the Act must be so interpreted as to advance the broad policy considerations underlying it. [112] Accordingly, the Act should be used to further its purpose; it should not be used as a tool to pursue vengeance for events not related to a discriminatory practice. [113] In this case, the only issue I have to decide is whether the Respondent’s conduct is such that a discriminatory practice on the basis of disability occurred. There are very few cases which assist in determining the answer to this question because the large majority of human rights cases arise from employment situations and very few cases have been decided on an allegation of discrimination in the provision of services, facilities or accommodation, such as is the case here. [114] In the case of Re Saskatchewan Human Rights Commission et al and Canadian Odeon Theatres Limited (1985) 18 D.L.R. 4th 93, the Complainant bought a ticket to see a movie and entered the theatre, but was required to sit in his wheelchair at the front of the theatre. He filed a complaint under the Saskatchewan Human Rights Code, alleging discrimination with respect to services or facilities offered to the public on the basis of physical handicap. An adjudicator found in his favour. The decision was set aside on appeal but was restored on further appeal to the Saskatchewan Court of Appeal. The majority judgment was delivered by Vancise, J.A. At page 113, he stated: The question to be determined in this case is whether the physical arrangements for the viewing of a movie which are available to all members of the public but which have the practical effect or consequence of discriminating against one or more members of the public because of a prohibited ground, i.e., physical disability, is discrimination. [115] At page 115, he further stated: The treatment of a person differently from others may or may not amount todiscrimination just as treating people equally is not determinative of the issue. If the effect of the treatment has adverse consequences which are incompatible with the objects of the legislation by restricting or excluding a right of full and equalrecognition and exercise of those rights it will be discriminatory: see also Re Rocca Group Ltd. and Muise (1979), 102 D.L.R. (3D) 529, 22 Nfld. & P.E.I.R. 1; Post Office v Union of Post Office Workers, [1974] 1 W.L.R. 89. [116] Discrimination in a human rights context is exclusion, restriction or preference of treatment based on one of a number of protected characteristics, the result of which is the prevention or impairment of the exercise of human rights and freedoms guaranteed in the Code. In order to determine whether the Complainant was discriminated against in this case, I must of necessity identify the specific act or acts of which he complains as being discriminatory or which resulted in discrimination. It is apparent from an examination of the complaint filed, and the evidence, that the specific act complained of as constituting discrimination is the fact that the Complainant’s son was not able to park in the horseshoe area of Central Station in order to wait for his father who was due to arrive on the Ottawa train. The issue in this case is whether the conduct of the Respondent towards the Complainant, a physically reliant person, results in treatment which is restrictive, detrimental or prejudicial to him. If it does, it is discriminatory and contrary to the provision of section 5 of the Act. [117] The Act must be given a liberal interpretation to ensure that its purpose as set out in section 2 is achieved. Accordingly, in order to find whether the Complainant was discriminated against, it is necessary to determine if the service or facility offered to him varied in any significant manner from the service or facility offered by the Respondent to the general public. The answer to this inquiry is no. The service offered to the Complainant did not vary significantly from the service offered to the general public. The evidence shows that the Complainant was allowed to proceed to the horseshoe area, to park there for a certain time in order to disembark or embark into his vehicle. The evidence shows that he had done this on numerous previous occasions and, according to the Complainant’s own evidence, he had never encountered any bad experiences at the Central Station on these occasions. What had changed on June 7, 2001 was the presence of police officers. The question is then: Why were these police officers present at the horseshoe on that evening? [118] The only answer to this question is the stubbornness of the Complainant’s son. When he was first approached by the security guard, there was no reason for the Complainant son’s refusal to move his car. His father was not in the car, nor was he waiting to board the car. The Complainant’s son could at that time have moved the car and sent his son in Central Station to meet his parents. He could have returned later to Central Station to pick up his parents. The only reason why he refused to do so is that he found this to be an inconvenience to himself; it had nothing to do with his father’s deficiency. If he did reasonably believe that the security guards were acting in a discriminatory manner, he should have realised that confrontation was not the answer. He should have moved his car and later filed a grievance or a complaint in his father’s name with the appropriate authorities. [119] The decision he made to stay there and confront the security guards was most unwise. It also demonstrates a trait of his character which was revealed at the hearing and corroborated by other evidence: he has a very short temper. Mr. Jacques Perron, Legal Counsel for the Respondent, who testified at the hearing, as well as a Memorandum to File written by Mr.Charles Unterburg of the Commission, both made references to this characteristic of the witness’ behaviour. [120] Unfortunately, the Complainant was confronted with these events but in no way can he inflict the consequences of these on the Respondent or his employees. No evidence was presented at the hearing by the Complainant to support such a conclusion. Had the Complainant presented his case fully and had he proceeded to cross-examine the Respondent’s witnesses, my conclusion might have been different. Sadly for him, the evidence before me does not support his claim. [121] In view of these circumstances, I cannot find, as this Tribunal did in Canadian Paraplegic Assn. v. Canada (Elections Canada), 1992 CanLII 284 (C.H.R.T.), that the Respondent's action is discriminatory. I cannot find that there was here a difference in treatment within the meaning of section 5 of the Act. I cannot find that the Respondent was responsible for any embarrassment, risk of injury or inconvenience to the Complainant. The Complainant was the victim of a set of circumstances which had nothing to do with discrimination, at least based on the evidence before me. VI. Conclusion [122] For the reasons given above, this complaint is dismissed. Signed by Michel Doucet Tribunal Member Ottawa, Ontario September 22, 2005 Canadian Human Rights Tribunal Parties of Record Tribunal File: T881/0104 Style of Cause: Benjamin Schecter v. Canadian National Railway Company Decision of the Tribunal Dated: September 22, 2005 Date and Place of Hearing: August 30 and 31, 2004 September 2, 9, 10 and 23, 2004, May 9 to 11, 2005 May 16, 2005 Montreal, Quebec Appearances: Benjamin Schecter, for himself No one appearing, for the Canadian Human Rights Commission William G. McMurray, for the Respondent

2005 CHRT 36

CHRT

Warman v. Warman

en

2005-09-23

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7128/index.do

2023-12-01

Warman v. Warman Collection Canadian Human Rights Tribunal Date 2005-09-23 Neutral citation 2005 CHRT 36 File number(s) T998/11804 Decision-maker(s) Groake, Paul Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNERICHARD WARMAN Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - ELDON WARMAN Respondent REASONS FOR DECISION MEMBER: Dr. Paul Groarke 2005 CHRT 36 2005/09/23 I. INTRODUCTION A. Service II. FACTS A. Background B. The Postings III. LIABILITY A. General Approach (i) The Law against Hate Messages (ii) The Requirements of Section 13 IV. PENALTY A. Constitutional Issues (i) Taylor (ii) Zündel (iii) Schnell (iv) Kyburz (v) Conclusions B. Range V. RULING A. Liability B. Penalty I. INTRODUCTION [1] The present complaint alleges that Eldon Warman contravened section 13 of the Canadian Human Rights Act by posting anti-semitic messages on the internet. On April 27, 2005, in the course of the hearing, I made the following ruling on liability. THE CHAIRPERSON: ...I have reviewed the evidence and the jurisprudence provided by the Commission. I am satisfied, on a balance of probabilities, that the postings that were entered into evidence are communications from Eldon Warman, within the meaning of section 13 of the Canadian Human Rights Act. I am not here to regulate the free exchange of ideas. There may be an element of legitimate political debate in the material entered into evidence and the Respondent has a right to his views. Some of the postings go beyond the legal parameters of public debate, however, and contravene the provisions of the Act. My concern is with the sentiments expressed in this material. The postings from the Respondent express an open hatred of Jews. They demean and vilify Jewish people. They promote hatred and contempt. This strikes at the dignity of all persons and harms the public good. I am satisfied that the complaint has been substantiated, and I will provide the parties with written reasons at a later date. So you have a finding of liability. I think, in terms of the order, that I will move to the order and then I will hear from the Commission. ORDER BY THE TRIBUNAL I have already heard from the parties on remedy and there is no need for further submissions on the request for an order under section 54(1)(a) and section 53(2)(a) of the Canadian Human Rights Act. I am prepared to grant an order, in the general terms set out in the decision of this Tribunal in Warman v. Kyburz, the citation being 2003 CHRT 18, at paragraph 83. I hereby order the Respondent, Eldon Warman, who has identified himself as Eldon-Gerald of the Warman family, to cease the discriminatory practice of posting messages or other material on the internet that is likely to expose Jews or any other member of an identifiable racial, religious or ethnic group to hatred or contempt. I would ask the Commission to provide me with a formal order. (T. 344) I reserved my decision on the question of penalty and advised the parties that I would issue written reasons at a later date. A. Service [2] The Commission and the Tribunal have served Eldon Warman with documents relating to the hearing on many occasions. He has persistently avoided service. A Table setting out the details of the many attempts to serve him was entered as exhibit T-5 during the course of the hearing.Exibit T-5 is attached as an appendix to this decision. [3] One package of documents was returned to the Tribunal on April 20, 2005. It contained a NOTICE stating, inter alia: This would appear to be important documents to you, so I am returning them intact and unopened. If you intended them for me, I hereby refuse your offer of contract, or any assumed contract, regarding your claimed right to jurisdiction over me. In the same Notice, Eldon Warman takes issue with the use of his name and states that the person referred to in his birth certificate is a legal fiction, the property of the Crown in right of the Province of New Brunswick. [4] On March 31, 2005, Eldon Warman was personally served with documents from the Commission. There was something of an altercation. The affidavit from the process server states that he served Eldon Warman with documents and began to walk away. The said Respondent then picked up a rock about the size of his hand. I turned and advised him that if he touched me that I would charge him with assault. He then stated you couldn't charge me with assault because I'm going to fucking kill you. I then ran to my car and left the area. This seems to reflect Mr. Warman's attitude towards the present proceedings. [5] There is another affidavit stating that there were eight attempts to personally serve Eldon Warman with documents from the Tribunal. I subsequently issued an order for substitutional service. On a number of occasions, documents have been left affixed to the main door of his residence. I am satisfied that Eldon Warman is aware of the present proceedings and has chosen not to participate in them. [6] The attempts to serve Eldon Warman continued, after the question of liability was decided. I insisted that the Commission serve a notice on Eldon Warman that it was seeking a penalty of 10,000 dollars under section 54(2) of the Canadian Human Rights Act. Although the Commission was unable to complete personal service, this notice was left taped to his door, along with my order to cease and desist. [7] I think the situation before me is more than a simple attempt to evade service. It is really a question of attornment. The evidence in the case indicates that Eldon Warman refuses to accept the authority of the courts and the other legal institutions in this country. I think it is clear that he does not accept the jurisdiction of the Tribunal in the matter. II. FACTS A. Background [8] The Complainant, Richard Warman, is not related to the Respondent. He advised the Tribunal that he has spent 15 years campaigning against hate messages. About five years ago, he focused on the internet. Although he was not qualified as an expert, I allowed him to provide some background on the material that was entered into evidence. [9] Richard Warman informed the Tribunal that there is a freeman or sovereign citizens movement. There are elements of the Posse Commitatus in the thinking of the movement. Its proponents believe that the only legitimate source of political power is local. This has given rise to a de-tax movement, which believes that the taxes imposed by government are unlawful. There is an idea that taxation is contrary to the Magna Carta. [10] Eldon Warman is a leading person in the de-tax movement. He has received some attention from the media and has given seminars that explain why individuals have no obligation to pay taxes. The evidence established that he operates a website called ©Detax Canada® which advises people how to Permanently-Effectively-Lawfully stop paying tax. This website can be found at: www.detaxcanada.org. [11] The website espouses a radical libertarianism, which places individual rights above the moral reach of government. The website contains a mix of morality, law, and politics, with exhortations not to pay tax, recover Canada as a free country, and restore the God Given INDIVIDUAL RIGHTS of Canadians. Some of the material is rather banal, such as the reference to the CCRA, the Canada Customs and Revenue Agency as Cursed Cannibals and Rabid Animals. [12] The website attacks the legitimacy of the legal order. One of the introductory boxes states:: YOU ARE BEING SUBJECTED TO HIGH TREASON Judges are primary factor in this TREASON against the Canadian people Canadian judges are using an American produced Anti-Government Movement Guidebook to deprive sovereign Canadians of their God Given Rights within the de facto corporate commercial Canadian court system - controlled by the Inner Temple of the `City of London, a hostile foreign entity. The threat is palpable. A box states: you have a right to use deadly force to stop these unlawful acts against you. There are dark suggestions that the sovereignty of the people should be restored. [13] There is a section on the web-site devoted to the establishment of a Canadian Magna Carta that lists the grievances of the Canadian people. There is a suggestion that the federal and provincial governments are unlawful. The Constitution Act of 1982 is an absolute HOAX and FRAUD. The Canadian people have been unlawfully converted into chattel corporate slaves by the massive debt of these governments, which is based upon counterfeit money borrowed from foreign bankers. [14] This seems to be the place where anti-semitism enters into the discourse. The same document argues that the Banksters of the City of London have usurped the authority of the British Crown and are using the taxation system to produce income for themselves. It is apparent from other material that the word bankster is a reference to Jewish interests. The website alleges that our government has been corrupted by an illicit conspiracy between Jews and free masons. [15] I want to be fair. There are some attempts to separate this kind of conspiracy theory from any racial, ethnic or religious views. One entry on the site states: I have no `axe to grind' with any ethnic, racial or religious grouping of people in Canada, or elsewhere. B. The Postings [16] The substantive evidence against Eldon Warman consisted primarily of copies of e-mail postings on public sites. These messages were collected by the Complainant through the use of internet search engines. Some of the messages appeared on bulletin boards and in newsgroups, arranged by topic. Some of the messages were taken from one posting and pasted to another. [17] Eldon Warman's name appears on the postings. The author of the postings can also be deduced from the return addresses and the contents of the messages. The earlier messages use two addresses: egwarman@hotmail.com and warmael@hotmail.com. Eldon Warman used the latter address when he registered the www.detaxcanada.org website on the whois registry of domains. There is a third address on the later postings, from 2002 on: egwarman@outgun.com. This address appears on the detax website. [18] The messages speak in one voice. The author uses the same language and returns repeatedly to the same themes. I think that I can draw the natural inference from the multitude of sources in front of me, in the absence of any other evidence, and conclude that Eldon Warman was the author of these messages. It would be speculative to find otherwise. [19] The messages that were entered into evidence portray the Jewish people as enemies. Eldon Warman traces a number of ills to the Jewish people. This ranges from abortion clinics to the Rwandan genocide. There are abusive references to the Jewish tradition. The Talmud is referred to as hate literature and the evil trash of the Rabbim of the Synagogue of Satan. [20] Most of the messages are from email conversations that took place on the internet. Eldon Warman replies to someone, perhaps a civil servant, in the following terms. So you stinking Fu*kin TRAITOR Zionist Jew BASTARD - hows that for anti-Edomite, er...anti-semitic if you prefer...If you represent that which is called a semite, then you'd better believe that I am an anti-semite....I am very intolerant of NAZI-ZIONIST MURDERING JEW slime like you Freddie. A jerk who is employed to attempt to keep Canadians in slavery and to destroy Canadian People and their families. There are many abusive comments. [21] Eldon Warman debases the Jewish people. Elsewhere, he responds to a correspondent in the following terms: Criswell, go back to screwing little goy boys, like the good Zionist Jew you obviously are. Another correspondent suggests that Eldon Warman is mentally ill. He replies: It seems I have the Jew boys really slinging their PIG SHIT, instead of doing what they do best, declare it kosher and dine on it....And, may their babies be butchered in their Jew owned abortion clinics. The tone of the messages is dehumanizing. [22] The most disturbing message is at p. 131 of the transcript: MS. PHILLIPS: Why don't you read the last paragraph, then, Mr. Warman. [RICHARD] WARMAN: The last paragraph states: Joe the JewBoy, Thanks for bringing back this reminder for the People of Canada and the United States to read and refresh their memory of what your NAZI-ZIONIST JEWS have done to the People of America. It's too bad we don't have a greater need for soap and lampshades, but, I suppose it would be difficult to get the stench of pig shit out of that slimy fat. Eldon Warman THE CHAIRPERSON: Let's be clear about this. What is this reference -- I think I understand. This is someone else posting a message that Eldon Warman had sent in the past? That's what it seems to be. MS PHILLIPS: It seems to me that Joe, this person with a very long e-mail, re-posted a previous posting by Mr. Warman within the thread of this bulletin board, and he has brought it back to the attention of the people who are currently discussing on the bulletin board to give them an idea of who Mr. Eldon Warman is, and then at the part that Mr. Richard Warman just read out, Mr. Eldon Warman is thanking him for bringing back the reminder to the people of Canada. THE CHAIRPERSON: So there is some kind of debate or discussion taking place, and someone else goes back and posts this previous message from Eldon Warman -- and that is his message -- and then, of course, Mr. Eldon Warman comes back again and responds to that particular posting. I think I understand. MR. [RICHARD] WARMAN: Yes. The original posting was in 1999. The message containing it was dated May 8, 2002. [23] I allowed Richard Warman to explain that Eldon Warman was referring to the fact that lampshades and soap were made from the bodies of the Jews who died in the concentration camps of the Third Reich. Eldon Warman was clearly exploiting these kinds of associations, to demonstrate the extent of his commitment to his political views. If he needed racial slurs to advance his political agenda, he was prepared to make use of them. [24] There are passages in which Eldon Warman denies the suggestion that he is a racist. He often tries to protect himself from accusations of racism by distinguishing between Jews and Zionist Jews. In one message, he says that his life does not revolve around Jew hatred and states: ... I do fear greatly for my grandchildren, and the world in which they must try to live their lives with value and meaning - and, not as slaves of Zionist Jew banksters. Some of the postings contain legitimate political commentary. This is full of invective, however. Eldon Warman refers to George Bush, the Unelected Jewnited States Fuhrer as leader of the `jackbooted' NAZI style goon squad. [25] I can see the beginning of a distinction here, but it does not matter. There is a racial agenda in the postings. I think it is impossible to disentangle Eldon Warman's attitude to Zionist Jews from a more general antipathy towards the Jewish people. The material incites hatred. III. LIABILITY A. General Approach [26] Section 13(1) of the Canadian Human Rights Act reads as follows: 13. (1) It is a discriminatory practice for a person ... to communicate telephonically ..., repeatedly ..., any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination. Section 13(2) extends this provision to communications made on the internet. [27] It seems to me that it is a mistake to see section 13 of the Canadian Human Rights Act as an independent legal restriction. The purpose of the section is to place some necessary and reasonable limits on our freedom of expression. It qualifies our freedom. This is important for the purposes of analysis, since it means that a Tribunal applying the section should start with the premise that individuals are free to express themselves. The task is to determine the limits of that freedom. [28] It is plain that that freedom of expression is part of the fundamental law. Article 19 of the Universal Declaration of Human Rights (GA Res 217A (III), UN Doc. A/810 (1948)) states that everyone has the right to receive and impart information and ideas through any media and regardless of frontiers. Article 19(2) of the International Covenant on Civil and Political Rights (19 December 1966, 999 U.N.T.S. 171) holds: 19(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. Article 19(3) subjects these freedoms to certain restrictions, which are necessary for respect of the rights or reputations of others. [29] The domestic law uses the same paradigm. The concept of free speech has always held an important place in our democratic tradition. This has been enshrined in section 2(b) of the Canadian Charter of Rights and Freedoms, which states: 2. Everyone has the following fundamental freedoms: b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; [30] The Supreme Court recognized that section 13 violated this provision in Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892. It was nevertheless a reasonable limit under section 1 of the Charter, and was demonstrably justified in a free and democratic society. [31] My point is simply that a Tribunal applying section 13 of the Canadian Human Rights Act is engaged in the rather sensitive task of determining the limits of our fundamental freedoms. This calls for a careful weighing of the constitutional values that are threatened by its application. I do not think that I am overstating the matter when I say that a tribunal that fails to appreciate the constitutional factors that come into play in such an exercise has probably misapplied the section. (i) The Law against Hate Messages [32] The legal machinery that finds expression in section 13 of the Canadian Human Rights Act has its origins in the international law. Article 7 of the Universal Declaration of Human Rights states: 7. All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination. It is the suggestion that other people do not deserve equal treatment that offends this kind of provision. [33] There is a law against statements that disseminate hatred. Article 20(2) of the International Covenant on Civil and Political Rights states: 20(2) Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law. Section 13 of the Canadian Human Rights Act comes within the general auspices of this article. [34] Article 4(a) of the International Convention on the Elimination of All Foms of Racial Discrimination (21 Dec. 1965, 66 U.N.T.S. 195) is more explicit. It requires that the state parties: 4(a) Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred . . . The Canadian Human Rights Act is designed to uphold the principle of equality. Section 13 and the related provisions achieve this by preventing the promotion of hatred and removing legally offensive material from the internet. [35] Section 13 characterizes the communication of hate messages as a form of discrimination. There are reasons for this. The laws that prohibit the dissemination of hatred derive from the right of individual persons to live their lives, free from hatred and inequality. I think Parliament has taken the position that the good relations that provide the foundations of civil society rest on the belief that the people in different groups are equal. This is a fundamental legal and political tenet. Any other view is illegitimate. (ii) The Requirements of Section 13 [36] The purpose of section 13 of the Canadian Human Rights Act is to remove dangerous elements of speech from the public discourse. The removal of these elements of speech from the public discourse promotes equality, tolerance, and the dignity of the person. It also protects the members of minorities from the psychological harm caused by the dissemination of racial views. These views result inevitably in prejudice, discrimination and the potential of physical violence. [37] The words expose, hatred and contempt have their ordinary meanings and the only comment I would make is that the concern with hatred in the context of the Canadian Human Rights Act arises out of the fact that hatred for other people imperils their equality. The messages prohibited by the section rob the victims of their dignity as persons and justifies their unequal treatment. This is not permissible. [38] The word contempt contains this association of inferiority. It is sufficient if the material is likely to expose a person to hatred or contempt. There is a certain gravity that is nevertheless required, to justify any infringement of freedom of expression. I do not believe that the section catches trivial or inconsequential comments. [39] I am satisfied that the requirements of the section have been met in the present case. The frequency of the messages and the nature of their posting on the internet is enough to meet any requirement that they be repeated. [40] The Tribunal should also be careful not to enter into the discussion of religious texts. Freedom of religion includes the freedom to dissent. I would nevertheless add that the promulgation of views that promote a contemptuous attitude towards fundamental religious tracts is likely to subject the groups that hold these texts sacred to hatred or contempt. [41] I have already issued an order to cease and desist. The Tribunal has been advised by the Commission that the material has been removed from the internet. The fundamental purposes of the Act have accordingly been met. IV. PENALTY [42] The Human Rights Commission is also asking for a penalty under section 54(1)(c) of the Canadian Human Rights Act, which states: 54(1) If a member or panel finds that a complaint related to a discriminatory practice described in section 13 is substantiated, the member or panel may make only one or more of the following orders . . . (c) an order to pay a penalty of not more than ten thousand dollars. The Commission is asking for the maximum penalty of 10,000 dollars. [43] Section 54(1.1) sets out a number of factors that the Tribunal must consider in assessing a penalty under this provision. 54(1.1) In deciding whether to order the person to pay the penalty, the member or panel shall take into account the following factors: the nature, circumstances, extent and gravity of the discriminatory practice; and the wilfulness or intent of the person who engaged in the discriminatory practice, any prior discriminatory practices that the person has engaged in and the person's ability to pay the penalty. The caselaw is too limited to provide much direction outside of these provisions. A. Constitutional Issues [44] I originally thought that the constitutional issues that arise in the instance of section 54(1)(c) have been decided. When I reviewed the caselaw, I discovered that this is not the case. (i) Taylor [45] The constitutionality of section 13 of the Canadian Human Rights Act was upheld by the Supreme Court of Canada in Canada (Human Rights Commission) v. Taylor, supra, where the Supreme Court held that the purpose of section 13 was to prevent the harm caused by hate messages. The penalty in section 54(1)(c) was not added to the legislation until 1998. I cannot see anything in Taylor that speaks to the constitutionality of the penalty provision. (ii) Zündel [46] The Tribunal has rendered two decisions that address the constitutionality of section 13. The first is Citron v. Zündel, [2002] C.H.R.D. No. 1. The comments of the panel in Zündel are obiter, however, since the complaint arose before the penalty provision came into effect The panel merely held that the provision had no retroactive effect. [47] The views of the Zündel panel with respect to the Tribunal's mandate under section 13 are nevertheless instructive. At para. 256, the Tribunal found that the majority in Taylor clearly distinguished a complaint under the Canadian Human Rights Act from an offence under the Criminal Code. It then quoted the following passage in Taylor, at p. 917: It is essential ... to recognize that, as an instrument especially designed to prevent the spread of prejudice and to foster tolerance and equality in the community, the Canadian Human Rights Act is very different from the Criminal Code. The aim of human rights legislation, and of s.13(1) is not to bring the full force of the state's power against a blameworthy individual for the purpose of imposing punishment. Instead, provisions found in human rights statutes generally operate in a less confrontational manner, allowing for a conciliatory settlement if possible and, where discrimination exists, gearing remedial responses more towards compensation of the victim. I think the Tribunal was right to focus on this aspect of the Taylor decision. (iii) Schnell [48] The Tribunal reconsidered the matter in Schnell v. Machiavelli and Associates Emprize Inc., [2002] C.H.R.D. No. 21, which was decided after the penalty provision came into effect. The argument before Mr. Sinclair was that the introduction of the penalty provision had compromised the constitutional validity of section 13. The Respondent submitted that the section could no longer be justified under s. 1 of the Canadian Charter of Rights and Freedoms. [49] I agree with the Tribunal in Schnell that this argument must be rejected. Mr. Sinclair found that the passage of section 54(1)(c) has pushed section 13 closer to its constitutional limits. He nevertheless felt that the decision of the Supreme Court in Taylor had not been affected by the introduction of the penalty provision. The importance of Schnell is, accordingly, that it reaffirms the constitutionality of section 13. [50] I think the significant point in the present context is that the two provisions are severable. The penalty provision may be defective, independently of section 13. I am accordingly of the view that the issues regarding section 54(1)(c) have not been resolved. [51] There are other differences. The Commission did not request a penalty in Schnell and the Tribunal declined to exercise its jurisdiction on that basis, so the matter was arguably moot. Mr. Sinclair was also concerned about the lack of information before him, in determining what penalty would be appropriate. [52] I think that any decision regarding the validity of section 54(1)(c) must be made in a case where a Tribunal is called upon to award a penalty. There are many reasons for this, not the least of which is that it is impossible for a Member to fully appreciate the weight of such a penalty until he is obliged to impose it. This does not change because the views are repugnant. (iv) Kyburz [53] The only case in which the Tribunal has awarded a penalty under section 54(1)(c) is Warman v. Kyburz, [2003] C.H.R.D. No. 18. The constitutionality of the penalty provision was not contested in the case. This was apparently because Mr. Kyburz did not appear. [54] The difference between the present case and Kyburz, supra, is that I feel obliged to bring these kinds of issues to the attention of the parties. Some of this may be attributable to the fact that the circumstances of the present case are less compelling than the circumstances in Kyburz. This brings the Charter issues into the foreground. [55] I nevertheless agree with the panel in Kyburz, which stated that the imposition of a financial penalty under section 54(1)(c) takes the Tribunal well outside the normal parameters of its jurisdiction. At para. 94, the Tribunal held: Awards of special compensation made under section 54(1)(b) in relation to section 13 complaints are intended to compensate individuals specifically named in hate messages. In contrast, penalties levied pursuant to section 54(1)(c) of the Act are intended to reflect society's opprobrium for the respondent's conduct. It is the moral blameworthiness of the Respondent's conduct that attracts the penalty. [56] It is significant that the Tribunal in Kyburz found itself unable to apply the penalty provision without using the language of the criminal law. The Tribunal speaks of the penalty as a fine and refers to the Respondent's vilation of the Act as a 'first offence'. It is impossible to escape the correlations between the sentencing process in the criminal courts and the imposition of a penalty under section 54(2). (v) Conclusions [57] It will be apparent from my review of the caselaw that the issues regarding the constitutional validity of section 54(1)(c) have not been settled. This is in spite of the fact that the provision obviously restricts the freedom of expression guaranteed by the Canadian Charter of Rights and Freedoms. The factor that distinguishes the present case from other cases is that the obvious issues in the case are constitutional.These issues arise on the surface of the legislation. [58] The problem is that Eldon Warman refuses to recognize the authority of the Tribunal and perhaps the legal system as a whole. He has chosen not participate in the inquiry. As a result, the issues that should have been raised on the Respondent's side of the case were never addressed. [59] There is very little that I can say about this. The Commission suggested that Eldon Warman must accept the consequences of his decision not to participate. He should not be rewarded for failing to appear. I agree with the Commission, but I cannot see how it affects the situation in which I find myself. The Respondent has lost the opportunity to address the issues in the inquiry. This applies as much to the constitutional issues as to any other issues in the case. I cannot see how this can be construed as an advantage or reward. [60] I find it regrettable that the Respondent refused to participate in the process. That does not deprive him of his right to a fair hearing, however, and I think it is incumbent on the Tribunal to see that the issues that arise on his side of the case are properly examined. The Respondent does not waive his right to a proper airing of the issues, or lose his fundamental freedoms under the Charter of Rights, simply by refusing to appear. Eldon Warman has his rights and freedoms, whether he wants them or not.Natural justice still applies. [61] There is no hiding from the fact that a Tribunal exercising its authority under section 54(1)(c) is setting limits on the scope of our freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms. The outstanding question is whether these limits can be justified under section 1 of the Charter. There are a number of points that could be made in this context. [62] The first point is that there are different forms of speech, which may attract different degrees of protection under the constitution. Even before the Charter, there were many judicial suggestions that Canada has an implied bill of rights, which protects political speech. This is important because the dialogue that Mr. Warman has participated in, over the internet, is fundamentally political. It may be pernicious and divisive. It is still a political dialogue. [63] The second point is that the Supreme Court upheld the provisions of the Canadian Human Rights Act relating to hate messages in Taylor on the basis that the Act is remedial. At some point in the evolution of the law, I accordingly think that the Commission has an obligation to explain how section 54(1)(c) fits into the remedial scheme of the Act. The Tribunal has already recognized on a number of occasions that the penalty provision departs from the scheme of the Act. [64] There is nothing incidental in this. The penalty contemplated by section 54(1)(c) is inherently punitive. It is intended to deter those individuals who would attack the essential equality on which the relations in society are based. The magnitude of the penalty should not be minimized. A fine of ten thousand dollars for expressing one's views is no mean thing. It opens the Respondent to all the rigours of recovery and proceedings for contempt. [65] The situation might be different if the financial penalty could be construed as a form of aggravated damages, or some other form of compensation. There would be less of a question if the penalty was used to alleviate the problems associated with hate messages. I have been informed, however, that the money is payable to the Receiver General and goes into general revenue. It does not go into education, a victim's fund, or some other compensatory measure. [66] The third point is related to the ordinary distribution of adjudicative duties in our system of justice. This usually leaves the punishment of individuals who commit moral wrongs in the hands of the criminal courts. There are reasons for this. There are institutional safeguards in the criminal process, which make it a better forum in which to pursue a penalty against an individual for impermissible comments. [67] The proceedings before the Tribunal are in the nature of civil proceedings. The present complaint was filed by a private individual, against a private individual. The purpose of an inquiry under the Canadian Human Rights Act is not to measure the moral blame that attaches to a Respondent' s actions. It is to rectify discrimination. The task of imposing a punishment and assessing a pecuniary penalty falls outside the normal ambit of the Tribunal's responsibilities. [68] This explains some of the differences in the process in the two arenas. The burden in the criminal courts is beyond a reasonable doubt, as opposed to a balance of probabilities. It is apparent that a Tribunal could entertain some doubt as to the culpability of a respondent-I think culpability is the right word here-and still award the penalty under section 54(1)(c).There is nothing to prevent the Complainant or the Commission from seeking criminal charges, if they are warranted. [69] The constitutional issue is whether the Respondent's freedom of expression can be restricted in this kind of way, without the kind of institutional and procedural safeguards that exist in the criminal process. This includes a higher standard of proof, proof of mens rea, and the strict application of the rules of evidence. It is one thing to punish an individual after a trial in a criminal court, with all the protections that the law extends to the accused. It is another thing to do so, in a process designed for other purposes. [70] It would be wrong to say anything more at this point in the process. I simply want to set out some of the issues that need to be addressed, if the Complainant and the Commission wish to invoke the penalty provision. I feel obliged to add that all of these issues go to the public interest under s. 51 of the Canadian Human Rights Act. This suggests that the Commission, at least, has an obligation to address them. B. Range [71] There is a second kind of issue that arises under section 54(1)(c). That is arises out of the fact that the maximum penalty is reserved for the worst cases. There has to be a range. This poses a problem in the present case, since I have not been directed to a reliable source of precedents, on which I could determine where it should be placed in the spectrum of possible cases. I think that previous Tribunals have run into similar difficulties. [72] These concerns are highlighted by the fact that the present complaint was filed by a private complainant. It would be wrong to assess penalties against individual respondents on an ad hoc basis. I do not see how a Tribunal can assess a fair penalty against Eldon Warman without some means of determining how the present case compares with other cases that might arise under the provision. This could be provided by expert evidence, which would at least establish the nature and frequency of the hate material that is available on the internet. [73] There may also be precedents in the criminal law that provide a basis for analysis. There is, for example, the rather notorious case of R. v. Ahenakew, [2005] S.J. No. 439 (Sask. Prov. Ct.), now under appeal, in which the accused was convicted of promoting hatred for describing the Jewish people as a disease. The accused was fined 1,000 dollars. The contrast with the present case is troubling. Here, the Commission is asking for a fine of 10,000 dollars, in a civil process, in absentia, without the safeguards of the criminal process. [74] I only mention Ahenakew by way of illustration. I cannot say what would constitute an appropriate penalty in the case before me. My point is simply that the Commission has an obligation to provide the Tribunal with information that would establish where a case fits in the range of cases that might come before the Tribunal. One would nevertheless think that the penalties awarded in the criminal law and the law of human rights should be consistent. This is a question of proportionality. [75] I am aware that subs. 54(2) sets out a number of factors that must be considered by the Tribunal. Although this provides some useful criteria, it seems to me that any Tribunal cognizant of its obligations would have reference to these kinds of factors, with or without the statutory direction. It does not really matter. These kinds of factors cannot provide the benchmarks that are needed, to establish the necessary scale. This requires an analysis of specific sets of facts. [76] All of this is compounded, once again, by the complete absence of any submissions from the Respondent. I realize that the Respondent must be held accountable for this. This does not make an inappropriate fine any more appropriate, however, and is still a concern. I suspect that the real solution lies in compelling the Respondent to appear. This only suggests, however, that the exercise should be conducted in a forum where some form of attendance is mandatory. V. RULING A. Liability [77] I cannot see how the prima facie analysis in the case law applies to hate messages. It does not matter. The postings are offensive under section 13 of the Canadian Human Rights Act. The Complainant and the Commission have met the required standard of proof and the complaint is substantiated. [78] The primary objective of section 13 is to remove repugnant and I daresay dangerous material from the public discourse. The real issue on liability is whether the material is offensive: issues of culpability are secondary and the responsibilities of the Tribunal consist primarily in keeping the channels of free speech clear of messages that threaten the normative foundations of our society. [79] The material before me undermines the principle that all people are equal. This is one of the axioms on which the legal and social order rests. Taken as a whole, the postings vilify the Jewish people. The theme is that Jews are part of an evil conspiracy. I think this feeds into a kind of racial, ethnic or religious enmity that presents dangers for society as a whole. [80] There is another factor. The material before me makes it clear that the respondent does not accept the legitimacy of the legal and political system. This is a subtext in the postings, which attack the validity of the laws that protect the members of minorities from discrimination, harassment and the overt expression of hate. I think this is an aggravating circumstance, which makes the material more offensive. [81] I make no comment on the political arguments that surface in the material before me. Eldon Warman lives in a free society and is entitled to his views, whatever I may think of them. I would not want to restrict the political discourse that is essential to the proper functioning of a free and democratic society. [82] The Tribunal should also be careful not to enter into the discussion of religious texts. Freedom of religion includes the freedom to dissent. I would nevertheless add that the promulgation of views that promote a contemptuous attitude towards fundamental religious tracts is likely to subject the groups that hold these texts sacred to hatred or contempt. [83] I have already issued an order to cease and desist. The Tribunal has been advised by the Commission that the material has been removed from the internet. The fundamental purposes of the Act have accordingly been met. B. Penalty [84] It will be apparent that I find myself unable to deal with the request for a penalty under section 54(1)(c) without further submissions. I am accordingly reserving my jurisdiction in the case for 30 days, to give the Complainant and the Commission an opportunity to decide whether they wish to respond to my concerns. If they wish to provide further submissions, I think they should provide constitutional notice under Rule 9(7) of the Canadian Human Rights Tribunal's Rules of Procedure. [85] I am directing that Eldon Warman be provided with a copy of this decision, by substitutional service. Signed by Dr. Paul Groarke OTTAWA, Ontario September 23, 2005 PARTIES OF RECORD TRIBUNAL FILE: T998/11804 STYLE OF CAUSE: Richard Warman v. Eldon Warman DATE AND PLACE OF HEARING: April 25, 26, 27, 2005 May 26, 2005 Ottawa, Ontario DECISION OF THE TRIBUNAL DATED: September 23, 2005 APPEARANCES: Richard Warman On his own behalf Valerie Phillips Monette Maillet For the Canadian Human Rights Commission Eldon Warman No one appearing for Eldon Warman APPENDIX T-5 April 22, 2005 Documents Sent to Eldon Warman Description of Document Date / Method of Delivery Date Returned to the Tribunal/ Reasons Indicated for Return Letter from the Tribunal dated November 22, 2004 regarding mediation by the Tribunal 1) Nov. 22, 2005 - Courier 2) March 1, 2, 3, 5, 6, 7, 9, 10, 2005 - Process Server 3) April 13, 2005 - Process Server* 1) Nov. 26, 2005 - Not known at this address 2) April 7, 2005- unable to personally serve 3) April 13, 2005 (received April 20, 2005) - refused by addressee, returned intact and unopened Letter from the Tribunal dated November 25, 2004 enclosing a questionnaire 1) Nov. 25, 2005 - Courier 2) March 1, 2, 3, 5, 6, 7, 9, 10, 2005 - Process Server 3) April 13, 2005 - Process Server* 1) Dec. 22, 2005 - Unclaimed 2) April 7, 2005- unable to personally serve 3) April 13, 2005 (received April 20, 2005) - refused by addressee, returned intact and unopened Letter from the Tribunal dated December 30, 2004 enclosing the above two letters 1) Dec. 30, 2004 - Courier 2) Dec. 30, 2004 - Regular Mail 3) March 1, 2, 3, 5, 6, 7, 9, 10, 2005 - Process Server 4) April 13, 2005 - Process Server* 1) Feb. 17, 2005 - Unclaimed 2) Jan. 18, 2005 (approx) - Return to sender 3) April 7, 2005- unable to personally serve 4) April 13, 2005 (received April 20, 2005) - refused by addressee, returned intact and unopened Letter from the Tribunal dated January 21, 2005 providing the Tribunal's directions to the parties 1) Jan. 21, 2005 - Courier 2) Jan. 21, 2005 - Regular Mail 3) March 1, 2, 3, 5, 6, 7, 9, 10, 2005 - Process Server 4) April 13, 2005 - Process Server* 1) Feb. 21, 2005 - Unclaimed 2) Feb. 7, 2005- Return to sender, refused by addressee 3) April 7, 2005- unable to personally serve 4) April 13, 2005 (received April 20, 2005) - refused by addressee, returned intact and unopened Letter from the Tribunal dated February 7, 2005, enclosing a Notice of Hearing 1) Feb. 7, 2005 - Courier 2) Feb. 7, 2005 - Regular Mail 3) March 1, 2, 3, 5, 6, 7, 9, 10, 2005 - Process Server 4) April 13, 2005 - Process Server* 1) Mar. 7, 2005 - Unclaimed 2) Feb. 15, 2005 - Return to sender, refused by addressee 3) April 7, 2005- unable to personally serve 4) April 13, 2005 (received April 20, 2005) - refused by addressee, returned intact and unopened Letter from the Tribunal dated February 15, 2005 extending the parties' disclosure deadlines 1) Feb.15, 2005 - Courier 2) Feb.15, 2005 - Regular Mail 3) March 1, 2, 3, 5, 6, 7, 9, 10, 2005 - Process Server 4) April 13, 2005 - Process Server* 1) Mar. 7, 2005 - Unclaimed 2) Mar. 14, 2005 - Return to sender 3) April 7, 2005- unable to personally serve 4) April 13, 2005 (received April 20, 2005) - refused by addressee, returned intact and unopened Letter from the Tribunal dated February 22, 2005 regarding the filing of exhibits 1) March 1, 2, 3, 5, 6, 7, 9, 10, 2005 - Process Server 2) April 13, 2005 - Process Server* 1) April 7, 2005- unable to personally serve 2) April 13, 2005 (received April 20, 2005) - refused by addressee, returned intact and unopened Letter from the Tribunal dated February 23, 2005 enclosing copy of all correspondence sent to date and advising of liability for any order made 1) March 1, 2, 3, 5, 6, 7, 9, 10, 2005 - Process Server 2) April 13, 2005 - Process Server* 1) April 7, 2005- unable to personally serve 2) April 13, 2005 (received April 20, 2005) - refused by addressee, returned intact and unopened Letter from the Tribunal dated April 7, 2005 enclosing a Notice of Change of Venue (hearing rooms) 1) April 13, 2005 - Process Server* 1) April 13, 2005 (received April 20, 2005) - refused by addressee, returned intact and unopened Letter from the Tribunal dated April 7, 2005 regarding written particulars 1) April 13, 2005 - Process Server* 1) April 13, 2005 (received April 20, 2005) - refused by addressee, returned intact and unopened Letter from the Tribunal dated April 7, 2005 enclosing all copy of all correspondence sent to date and advising of liability for any order made 1) April 13, 2005 - Process Server* 1) April 13, 2005 (received April 20, 2005) - refused by addressee, returned intact and unopened * An Order for Substitutional Service was made by the Tribunal on April 7, 2005

2005 CHRT 37

CHRT

Parent v. Canadian Forces

en

2005-09-30

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7127/index.do

2023-12-01

Parent v. Canadian Forces Collection Canadian Human Rights Tribunal Date 2005-09-30 Neutral citation 2005 CHRT 37 File number(s) T934/5404 Decision-maker(s) Hadjis, Athanasios Decision type Decision Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE ALAIN PARENT Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADIAN FORCES Respondent RULING MEMBER: Athanasios D. Hadjis 2005 CHRT 37 2005/09/30 [1] The Complainant has brought a motion to amend his complaint. When he filed the complaint with the Canadian Human Rights Commission on September 5, 2002, he was still a member of the Canadian Forces, the Respondent. He alleged in the complaint that on account of his disability (post-traumatic stress disorder), he was mistreated and harassed by his superiors, and was denied medical treatments to which he was entitled, the whole in breach of s. 7 of the Canadian Human Rights Act (the Act). In November 2002, two months after the complaint was filed, the Canadian Forces discharged the Complainant. On May 19, 2004, the Commission referred the complaint to the Tribunal for inquiry, pursuant to s. 49 of the Act. [2] The Complainant now wishes to amend his complaint to allege that his medical condition was a factor in the decision to discharge him. He claims that the discharge constitutes a discriminatory practice under s. 7 of the Act. He also claims that the discharge was made in retaliation for his having filed the complaint, in contravention of s. 14.1. [3] The Canadian Forces are contesting the motion. On a preliminary point, they contend that the motion should fail because the facts alleged are not supported by an affidavit. I do not share this view. The Tribunal's Rules of Procedure are not as formal as those of a court. Motions are not required to be supported by an affidavit (see Rule 3). Indeed, they need not follow any particular format. It is common for the Tribunal to receive motions by way of letters and even email messages. The main objective is to ensure that each party be given full and ample opportunity to be heard by the Tribunal. [4] The Canadian Forces point out that Complainant Counsel details several facts and events in the notice of motion to explain why the complaint was not amended earlier in the process, none of which have been proven by way of affidavit. However, the Canadian Forces, in their contestation, refer to numerous facts and incidents that allegedly occurred over the course of the complaint's progression, which are not supported by any affidavit either. It is important to note that the Complainant is not trying to prove his complaint at this time but to merely add several allegations to the complaint. Having taken all of the circumstances into account, I am satisfied that the Tribunal is in a position to address the motion to amend the complaint and the contestation, in a fair manner, based on the record before it. No additional evidence is required. [5] In Bressette v. Kettle and Stony Point First Nation Band Council, [2004] CHRT 2 at paras. 5 and 6, the Tribunal articulated some of the principles that have been derived from a number of decisions dealing with the question of amending complaints. To begin with, a human rights complaint is not like a criminal indictment. The Tribunal has the discretion to amend a complaint to deal with additional allegations, provided sufficient notice is given to the respondent so that it is not prejudiced and can properly defend itself. It is not necessary for allegations of retaliation that arise after a complaint has been filed, to be made by way of separate proceedings. Rather, an amendment should be granted unless it is plain and obvious that the additional allegations could not possibly succeed. [6] The Canadian Forces contend that there is no connection between the Complainant's discharge and his human rights complaint. According to the National Defence Act, R.S.C. 1985, c. N-5, officers and non-commissioned members can only be discharged by the Chief of the Defence Staff or his designated officer, in accordance with the Administrative Orders of the Canadian Forces. The individuals who were involved in the discriminatory practices alleged in the complaint could therefore not have participated in the decision to release the Complainant. It is therefore unrealistic for the Complainant to suggest that there is a linkage between his discharge and the alleged discrimination. [7] In my view, the soundness of this argument can only be assessed after a full inquiry by the Tribunal into all of the facts. At this stage, the Complainant is merely seeking to add certain allegations, which he will have the burden of later proving at the hearing. It is not plain and obvious that the Complainant would not succeed with these allegations. [8] The Canadian Forces submit that the Complainant is attempting to short-circuit the human rights process as set out in the Act, by attempting to refer a complaint directly to the Tribunal without first having submitted it for consideration and investigation by the Commission. I disagree. The new facts being alleged do not constitute a complaint that is distinct from that which was originally filed with the Commission in 2002. Rather, these facts are an outgrowth of the alleged discriminatory practices that had occurred prior to the filing of the complaint. Essentially, the Complainant submits that the discrimination he experienced while employed by the Canadian Forces was also a factor in his subsequent discharge. He further alleges that his filing of the complaint was in and of itself a factor (an act of retaliation in breach of s. 14.1 of the Act). It is an ongoing series of events that is being asserted, not a separate unrelated occurrence. [9] As noted by the Tribunal in the case of Cook v. Onion Lake First Nations (2002), 43 C.H.R.R. D/77 at para. 17 (C.H.R.T.), issues arising out of the same set of factual circumstances should normally be heard together. However, an amendment to a complaint should not be granted where it would prejudice the respondent unfairly. Such prejudice must be real and significant (Cook, at para. 20). There must be actual prejudice. The Tribunal in Cook suggested that among the factors to be considered are delay and might include the loss of the Commission's investigation and conciliation processes. [10] In the present case, the Respondent does not dispute that the Complainant informed the Commission investigator of his discharge and that it was specifically mentioned in the investigator's report. However, the Complainant made known his intention to seek an amendment to the complaint in June 2005, over two and a half years after the discharge. The Canadian Forces claim that they will be prejudiced if the motion is granted, namely by having to prepare a defence to the new allegations. [11] I am not convinced that this constitutes a real and significant prejudice. In my opinion, the mere passage of many months or even years from the filing date of the original complaint does not necessarily mean that the addition of allegations will cause a respondent real and significant prejudice. As the Tribunal observed in Gaucher v. Canadian Armed Forces, [2005] CHRT 1, at para. 10, the complaint form exists primarily for the purposes of the Commission. It is a necessary first step, which raises a set of facts that calls for further investigation. It is the Statement of Particulars (filed pursuant to Rule 6 of the Tribunal's Rules of Procedure), rather than the original complaint, that sets the more precise terms of the hearing. In the present case, neither the disclosure of documents nor the exchange of the statements of particulars has occurred as yet. We are still many months away from the hearing. There is ample time for the Canadian Forces to prepare their defence to the aspects of the Complaint raised in this motion to amend. Any specific concerns relating to the timeline can be addressed when the dates for disclosure and the hearing are set during the case management process. [12] Furthermore, I do not agree with the Canadian Forces' submission that they are prejudiced by the fact that the new allegations will not pass through the Commission's investigation and conciliation processes, as the original complaint had. The obvious benefit of these processes is the opportunity to resolve complaints at an early stage, before referral to the Tribunal. Once a complaint is referred, nothing prevents a respondent from bringing before the Tribunal any defences and explanations that it would have raised with the Commission investigator. In addition, the Tribunal's own mediation process offers parties the same opportunity to settle their dispute as the Commission's conciliation process. [13] This is all not to say that complainants should feel free to omit facts from their original complaints, based on a mistaken assumption that they have an absolute right to insert additional allegations later on. Such conduct could be viewed as abusive. [14] In the present circumstances, however, I am satisfied that the Complainant has not conducted himself in such a manner. The Complainant informed the Commission investigator of his discharge shortly after its occurrence. For some reason, the complaint was not amended at the time. That is of little consequence in the circumstances of the case. In my opinion, allowing the amendment to be made now will not result in a real or significant prejudice to the Canadian Forces. [15] The Canadian Forces have pointed out that as this amendment is being sought two and a half years after the Complainant's discharge, it is prescribed or time-barred. Pursuant to s. 41 (1) (e) of the Act, the Commission has the discretion to not deal with a complaint that is based more than one year, or such longer period as the Commission considers appropriate in the circumstances, before receipt of the complaint. This provision plainly relates to new complaints. However, a new complaint is not being advanced in the present case. The Commission has already exercised its discretion and referred the complaint to the Tribunal. The incidents raised in the amendment relate directly to the allegations already mentioned in the complaint. In granting the motion, no period is being extended. The Complainant is simply being permitted to complete his existing complaint to include facts that arose after its original formation. [16] For all these reasons, the Complainant's motion is granted. The Complaint is amended to include the following paragraphs as set out in the Complainant's submissions on the motion to amend: (1) The Complainant, Alain Parent, had an employment contract with the Canadian Forces that extended until 2019. (2) The Complainant considers his discharge from the Canadian Forces to be a discriminatory act based on his state of health, in contravention of s. 7, and an act of retaliation, in contravention of s. 14.1 of the Canadian Human Rights Act; (3) The manner with which the Canadian Forces dealt with the Complainant, in terminating his employment and discriminating against him on account of his disability, resulted in the destruction of his career plan, for which he should be compensated. Signed by Athanasios D. Hadjis OTTAWA, Ontario September 30, 2005 PARTIES OF RECORD TRIBUNAL FILE: T934/5404 STYLE OF CAUSE: Alain Parent v. Canadian Forces RULING OF THE TRIBUNAL DATED: September 30, 2005 APPEARANCES: Josée Potvin For the Complainant Pierre Lecavalier For the Respondent

2005 CHRT 38

CHRT

Sherman v. Revenue Canada

en

2005-10-05

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7126/index.do

2023-12-01

Sherman v. Revenue Canada Collection Canadian Human Rights Tribunal Date 2005-10-05 Neutral citation 2005 CHRT 38 File number(s) T975/9504 Decision-maker(s) Jensen, Karen A. Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUANAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNESIMONE SHERMAN Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - REVENUE CANADA Respondent RULING MEMBER: Karen A. Jensen 2005 CHRT 38 2005/10/05 [1] Simone Sherman filed a complaint with the Canadian Human Rights Commission on January 21, 2000 alleging that her employer, Revenue Canada (now the Canada Revenue Agency, (the CRA)), discriminated against her by treating her differently, failing to accommodate her and finally, terminating her employment on the basis of her disability. On August 13, 2004, the Commission referred the complaint to the Canadian Human Rights Tribunal for further inquiry. [2] Ms. Sherman's complaint of discrimination is part of a long-running dispute that has led to concurrent litigation in multiple forums. The problems began when Ms. Sherman suffered repetitive strain injuries resulting from her work as a Computer Audit Specialist with the CRA. At the heart of the various threads of litigation flowing from her injury is the question of whether the CRA has taken the appropriate actions to accommodate Ms. Sherman's physical restrictions. [3] Ms. Sherman is now seeking an order declaring that the findings of an Independent Third Party (ITP) reviewer, who reversed the CRA's decision to terminate her employment, are binding on this Tribunal by virtue of the doctrine of issue estoppel. The CRA, in response, has also argued that issue estoppel should apply, but that it should apply with respect to the findings of the Workplace Safety and Insurance Board (formerly the Workers' Compensation Board). On the face of it, the ITPR and Workplace Safety and Insurance Board (WSIB) decisions would appear to contradict each other. [4] The issues raised in the present motion are as follows: Does the doctrine of issue estoppel apply to the findings and conclusions of the ITP reviewer and/or to the findings and conclusions in the WSIB decisions? If issue estoppel applies in either or both cases, should the Tribunal exercise its discretion not to apply the doctrine? I. DOES ISSUE ESTOPPEL APPLY TO THE ITPR AND/OR THE WSIB DECISIONS? A. Factual Background [5] Sometime in about 1994, Ms. Sherman developed work-related repetitive strain injuries. She left work and was later awarded Workers' Compensation benefits. [6] In 1996, Ms. Sherman returned to work for four hours per day. Two different experts in ergonomic accommodation were retained at different periods in time to assist the CRA with its accommodation efforts. The process was fraught with difficulties. [7] In May, 1998, the WSIB decided to terminate Ms. Sherman's vocational rehabilitation services and her supplementary benefits. Both decisions were based on the WSIB's view that Ms. Sherman was capable of working full-time at accommodated duties with no income loss and that the CRA had largely fulfilled its accommodation requirements. Ms. Sherman has appealed both WSIB decisions but the matters have been held in abeyance. [8] Also, during the period between January, 1996 and August, 2000, events occurred which resulted in the filing of three grievances by Ms. Sherman's union. Those grievances relate to the termination of her injury on duty pay in September, 1997, her suspension without pay in July, 1998 and the denial of her request in May, 1998 to be returned to work with accommodation and retroactive pay. Some of the issues raised in Ms. Sherman's grievances are also raised in her human rights complaint. [9] In July 1998, Ms. Sherman also lodged an independent complaint against the CRA alleging that several of her supervisors had harassed her on the basis of her disability, abused their authority, and otherwise discriminated against her. She has requested that an independent third party investigation be conducted into her complaint. Ms. Sherman has refused the suggestion by the CRA that she incorporate her harassment complaint into her human rights complaint before this Tribunal. [10] On May 14, 1999, Ms. Sherman's employment was terminated for her refusal to complete a Functional Abilities Evaluation (FAE). This decision was subsequently rescinded by the CRA. However, in August 28, 2000, the CRA again terminated Ms. Sherman's employment citing her refusal to complete the FAE and her incapacity to perform the requirements of her position as the primary reasons for her dismissal. [11] Ms. Sherman contested her termination by way of an Independent Third Party Review. The ITPR is a relatively new process that was developed by the CRA pursuant to the authority of the Canada Customs and Revenue Agency Act S.C. 1999, c. 17. The process provides for an independent review of grievances relating to terminations, demotions, lay-offs and certain staffing actions. [12] On February 24, 2003, after a 19-day hearing preceded by numerous rulings on preliminary issues, the ITP Reviewer rendered his decision. He ordered that Ms. Sherman be reinstated to her pre-injury position with back pay and benefits, effective August 28, 2000. The Reviewer also found that the CRA's obligations to accommodate Ms. Sherman in her position had not been met and that these obligations would continue upon reinstatement. [13] Ms. Sherman subsequently brought a motion in the Federal Court for a mandamus order to compel the CRA to implement disputed aspects of the ITPR decision. Next, she brought a motion for a contempt order concerning the implementation of the mandamus order. The mandamus order was granted, but the motion for a contempt order has not yet been heard. Another motion for a mandamus order has been filed by Ms. Sherman in the Federal Court, but it has also not been heard yet. [14] In June 2004, Ms. Sherman's grievances proceeded to arbitration before the Public Service Staff Relations Board. In a preliminary ruling on August 27, 2004, the PSSRB held that issue estoppel applied to the nine determinations that underpinned the ITPR decision. The CRA has applied for judicial review of the PSSRB ruling on issue estoppel. A hearing on this application is expected shortly. [15] Before this Tribunal, the application of issue estoppel has once again been raised. For the reasons that follow, I find that although the criteria for issue estoppel are more likely to have been met with respect to the ITPR decision than the WSIB decisions, this is a case where it is appropriate to exercise my discretion not to apply the doctrine. B. Law and Analysis [16] Issue estoppel is meant to bring finality to litigation. It is a legal tool that has both practical and equitable goals. It is not only inefficient and expensive to continue to litigate the same issues between the same parties, it is also unfair to the successful party to have to fight the battle all over again. (Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460) [17] In this case, however, the successful party, Ms. Sherman, is seeking to use the doctrine for a different purpose. She wants to use her win in the ITPR process to expedite the Tribunal's hearing on allegations of discrimination that were not within the jurisdiction of the other forums. She also hopes that it will enable her to obtain further relief for matters that were either determined in another forum or may, at some point, be determined in another forum. The question is whether this is an appropriate use of the doctrine of issue estoppel. [18] The CRA, on the other hand, is employing the doctrine in the traditional sense - as a shield to prevent Ms. Sherman from relitigating matters that it alleges were conclusively determined by the WSIB. The CRA also argues that the conditions for issue estoppel are not met with respect to the ITPR decision. [19] The two-part test for the application of the doctrine of issue estoppel is now well-known: (1) the criteria for issue estoppel must be met; and (2) if the criteria are met, the Tribunal must determine, based on certain discretionary factors, whether it is appropriate, in the circumstances, to apply the doctrine (Danyluk, supra, at para 33). [20] The criteria to be met for the application of issue estoppel are as follows: the same questions are being decided in both proceedings; the judicial decision which is said to create the estoppel is a final decision; and the parties, or their privies, are the same. (i) The Same Questions [21] For the questions to be considered the same, they must have been so fundamental to the decision arrived at in the earlier proceeding that the decision could not stand without them (Angle v. Canada (Minister of National Revenue), [1975] 2 S.C.R. 248). Furthermore, this requirement of the doctrine is met only if, on careful analysis of the relevant facts and the applicable law, the answer to the specific questions in the earlier proceeding can be said to determine at least some of the issues in the subsequent proceeding (Heynen v. Frito Lay Canada Ltd. (1999), 45 O.R. (3d) 776 at para. 20). [22] Issue estoppel applies to issues of fact, issues of law and issues of mixed fact and law. The same issue requirement may apply at two levels in proceedings. It may apply to the underlying or evidentiary findings on which the final determinations are made and it may apply to the final determinations themselves. (Minott v. O'Shanter Development Co. (1999), 42 O.R. (3d) 321 (C.A.)) In some cases, the application of issue estoppel will completely dispose of the matter in the subsequent proceeding. In other cases, it may simply narrow the issues to be determined. The parties argue that it is the latter result which would follow from a decision to apply the doctrine of issue estoppel in the present case. The ITPR Decision [23] The question before the ITP reviewer was whether the CRA's decision to terminate Ms. Sherman's employment was reasonable. Framed in this way, the issue would not seem to be the same as whether Ms. Sherman's termination was discriminatory. However, when one examines the CRA's reasons for dismissing Ms. Sherman, it becomes apparent that the question of whether her termination was in accordance with human rights law was fundamental to the ITP reviewer's decision. [24] In reviewing the CRA's termination decision, the ITP reviewer was required to determine whether Ms. Sherman was disabled, whether she was capable of performing the duties of her position with or without accommodation, whether she had been provided with accommodation to the point of undue hardship, whether she cooperated with the efforts to accommodate her and whether the requirement of performing the Functional Abilities Evaluations was a bona fide occupational requirement. [25] The three issues raised in Ms. Sherman's human rights complaint are: (1) whether the termination of her employment was discriminatory; (2) whether the CRA failed to accommodate her disability, and; (3) whether she was treated in a differential manner on the basis of her disability during her employment. [26] The first two issues are the same as those dealt with by the ITP reviewer. However, the issues with regard to differential treatment are not entirely the same as those that were decided in the first proceedings. Ms. Sherman's allegations relating to differential treatment are that she was denied training opportunities, sent home on sick leave, suspended without pay, denied a promotion, not permitted to work at home and given different equipment because, at least in part, she was disabled. These issues were either not dealt with by the ITP reviewer because he lacked jurisdiction or they were dealt with collaterally by him in assessing the good faith efforts of the CRA to accommodate Ms. Sherman before dismissing her. Therefore, these issues do not fall within the same issue criterion of the doctrine. [27] While some of the motion materials submitted by Ms. Sherman seem to indicate that the inquiry before this Tribunal would be limited to the question of remedies, there are other indications that evidence will be led on the merits of the complaint. There is certainly no suggestion in the materials that Ms. Sherman has abandoned her interest in establishing the CRA's liability for the above-mentioned allegations with regard to differential treatment. Those allegations involve different issues from the ones that were determined by the ITP reviewer. The WSIB Decisions [28] The CRA argues that the decisions of the WSIB address the same issues as those raised in Ms. Sherman's human rights complaint and therefore, this aspect of the test for issue estoppel has been met with respect to the WSIB decisions. [29] There are, in fact, three WSIB decisions. The ITP reviewer found that issue estoppel applied with respect to the findings in the first WSIB decision of January 30, 1996. However, the reviewer refused to apply the doctrine with respect to the second and third decisions because he held that the CRA had failed to raise the issue in a timely manner and to provide notice to Ms. Sherman. [30] Such is not the case in the present motion. The CRA has provided full and timely notice of its position with regard to this issue. It matters not that this was done by way of a response to Ms. Sherman's motion. The CRA argues that the second and third WSIB decisions are binding on the proceedings before this Tribunal. [31] In my view, the fundamental issues to be determined in the second and third WSIB decisions were different from those in the present complaint. The primary issues in those decisions were whether Ms. Sherman was entitled to vocational rehabilitation services or supplementary benefits. Although the WSIB had to consider, to some extent, whether the CRA had accommodated Ms. Sherman's disability, the question confronting the WSIB was whether the employer was sufficiently on track with its accommodation efforts to justify the WSIB's withdrawal from the process. This is quite different from the question raised in Ms. Sherman's human rights complaint, namely whether the CRA exhausted every viable accommodation option to the point of undue hardship (Eyerley v. Seaspan International Ltd. [2001] C.H.R.D. No. 45 at para. 159). (ii) Final Judicial Decisions [32] For the purposes of this aspect of the test, a decision will be considered judicial in nature if the decision-maker was capable of receiving and exercising adjudicative authority, and the decision was one that was required to be made in a judicial manner (Danyluk, supra, at para 47). A decision is made in a judicial manner if it is based on findings of fact and the application of objective legal standards to those facts (Danyluk, supra, at para 41). [33] A decision is final for the purposes of issue estoppel when the decision-making forum pronouncing it has no further jurisdiction to rehear the question or to vary or rescind a finding (Donald J. Lange, The Doctrine of Res Judicata in Canada, 2nd ed. (Toronto: LexisNexis Canada, 2004) at 86). The ITPR Decision [34] The ITPR process provides the authority for the reviewer's adjudicative responsibilities to be discharged in a judicial manner. Furthermore, I find that the ITPR decision was final and was required to be rendered in a judicial manner. Thus, I find that the ITPR decision meets this aspect of the test. The WSIB Decisions [35] The second and third WSIB decisions are under appeal. However, Ms. Sherman has asked that they be held in abeyance pending the outcome of other proceedings. I do not think it is fair to hold this against the CRA. [36] In my view, the Workplace Safety and Insurance Act, 1997, S.O. 1997, ch. 16 provides the WSIB with the authority to make judicial decisions. Moreover, I find that the Act requires Board decisions to be rendered in a judicial manner. Therefore, I find that this aspect of the test is also met with respect to the WSIB decisions. (iii) The Parties or their Privies are the Same [37] For the third requirement to be met, the parties or their privies must be the same. The parties to both the ITPR and the WSIB processes were Ms. Sherman and the CRA. In the proceedings before this Tribunal, there is an additional party that was not a party to the previous proceedings - the Canadian Human Rights Commission. [38] When the parties to the proceedings are not the same, this aspect of the test may still be met if one party was the privy of another in the previous proceeding(s). In order to be a privy, there must be a sufficient degree of common interest between the party and the privy to make it fair to bind the party to the determinations made in the previous proceedings. (Danyluk, supra, at para. 60). Decisions about whether there is a sufficient degree of mutual interest to say that one party was the privy of another must be made on a case-by-case basis (Smith, J. v. Canadian National Railway 2005 CHRT 22 at para. 28). [39] The Tribunal has been reluctant to find that the Commission was a privy of the complainant because of the impact that this will have on the Commission's ability to represent the public interest in proceedings before the Tribunal (Parisien v. Ottawa-Carleton Regional Transit Commission, [2002] C.H.R.D. 23; and Desormeaux v. Ottawa-Carleton Regional Transit Commission, [2002] C.H.R.D. 22). [40] However, in the present case the Commission has indicated that it will neither be participating in the present motion nor appearing at the hearing on this matter. This would suggest that in the Commission's opinion, there are no public interest issues to be raised beyond those raised by Ms. Sherman and the CRA either in the context of the present motion or in the context of the inquiry into the merits of the complaint. Thus, in this case I am of the view that there is sufficient commonality of interest between the Commission and Ms. Sherman to be able to say that they are privies of one and other. Therefore, this aspect of the test is met with respect to the ITPR and WSIB decisions. Conclusion with Regard to the Test for Issue Estoppel [41] I conclude that the preconditions for the application of issue estoppel have been met with regard to the ITPR decision, but not with respect to the WSIB decisions. II. SHOULD THE DOCTRINE OF ISSUE ESTOPPEL APPLY IN THIS CASE? [42] In Danyluk, the Supreme Court of Canada stated that the doctrine of issue estoppel should not be automatically applied once it has been determined that the preconditions have been met. Rather, tribunals must consider whether it is appropriate, in the particular circumstances of the case, to apply the doctrine having regard to a number of factors. [43] Since the preconditions for the application of issue estoppel have been met only with respect to the ITPR decision, my discussion of the discretionary factors will be limited to the context of that decision. [44] Some of the factors enunciated by the Supreme Court are applicable in the present circumstances and others are not. I will deal only with those that are applicable. Moreover, in light of the Supreme Court's statement in Danyluk that the list of discretionary factors is open, I have taken the liberty of considering an additional factor: whether the interests of justice will be served by the application of the doctrine. (i) The Wording of the Statute and the Purpose of the Legislation [45] The Guidelines for the Independent Third Party Review process provide for a review of management decisions under very limited circumstances. The scope of the relief which may be provided is also very limited. Moreover, there is no suggestion that the ITP reviewer has exclusive jurisdiction over the review of termination decisions. [46] In fact, Ms. Sherman filed her human rights complaint after the first CRA decision was made to terminate her employment. Thus, she was clearly aware that alternative forums to the ITPR process existed which could provide not only more comprehensive relief than the ITPR process, but which could also address the broader range of allegations stemming from the core issue in all her litigation - the allegedly discriminatory treatment by CRA based on her disability. [47] The problem with a system of concurrent jurisdiction in multiple forums is that parties like Ms. Sherman are faced with very difficult choices: should they put all their eggs in one basket and focus their efforts on obtaining a positive result in the forum that has the broadest jurisdiction and can provide the most comprehensive relief; or should they use the shotgun approach and hope that they will achieve success in at least one forum which can then be used, by means of the doctrine of issue estoppel, to obtain favourable decisions and relief in other forums? [48] In the present case, Ms. Sherman chose the latter approach. She has pursued a number of different avenues for redress. In some of those forums she has been successful, in others less so. [49] It is difficult to see how the goals of the doctrine of issue estoppel - achieving consistency and finality in litigation and encouraging the resolution of disputes in one forum - are served by allowing Ms. Sherman to use her successful decisions to obtain not only additional remedies, but also to assist her to make out additional components of her complaint in other forums. Recent jurisprudence on this issue has emphasized the principal that when several related issues emanate from a workplace dispute, they should be heard by one adjudicator, to the extent jurisdictionally possible, so that inconsistent results and remedies may be avoided (Ford Motor Co. of Canada v. Ontario (Human Rights Commission) (2001), 209 D.L.R. (4th) (Ont.C.A.) at para. 60). (ii) The Safeguards Available to the Parties in the Administrative Procedure [50] Another concern that I have relates to the procedural safeguards available to parties under the ITPR process. Although it is endowed with a significant number of procedural safeguards, the ITPR process appears to lack some of the powers necessary to ensure that the parties are able to know and meet the case before them. The ITP reviewer himself stated that the lack of authority in the ITPR Guidelines to summon witnesses and to demand document production constituted a significant handicap to the fact-finding process in complex matters such as Ms. Sherman's termination (page 34 of the ITPR decision). This is a consideration in determining whether to exercise the Tribunal's discretion to apply the doctrine of issue estoppel. (iii) Whether the Interests of Justice will be Served by the Application of the Doctrine [51] As has been noted, this case involves a multiplicity of proceedings in numerous forums some of which have resulted in decisions that conflict on important points, and some of which have yet to move to the hearing or decision-making stage. Indeed, after reviewing the voluminous documentation regarding the various proceedings, one is left with the distinct impression that the doctrine of issue estoppel simply cannot provide an expeditious shortcut through this patchwork of decisions and procedures. [52] Part of the difficulty is that Ms. Sherman is not simply asking the Tribunal to apply the previous determinations made by the ITP reviewer to the issue of additional remedies that were or are not now available to her in other forums. Rather, she is asking for an order that some fifty-four findings of the ITP reviewer, which cover a wide range of issues in the complaint, are binding on the Tribunal's decision with regard to other allegations of discrimination such as differential treatment. It is likely that in making determinations regarding the other allegations in the complaint and the appropriate remedies, the Tribunal will be required to make additional findings which are not covered by the ITPR decision. The evidence adduced to prove or refute those allegations may well stray into the realm of those facts that have already been established by the ITPR. Undoubtedly, then, there will be disagreements about whether evidence can be lead which relates to a point that has already been proved but which may be necessary to provide the context or to prove a fact that is still in issue. It is difficult to see how such controversies will assist the parties or the Tribunal to reach an expeditious and fair result on the merits of the complaint. [53] Moreover, at this stage in the process, without the benefit of having heard any evidence or argument, it seems imprudent of me to bind the Tribunal to certain determinations which may or may not accord with other evidence which will be led regarding the allegations that are still in issue. III. CONCLUSION AND ORDER [54] Although the criteria for the application of issue estoppel have been met with respect to the ITPR decision, this is a case where, having regard to the factors enunciated in the Danyluk decision, it is appropriate to exercise my discretion to refuse to apply the doctrine of issue estoppel. Given the multiplicity and complexity of the proceedings and decisions relating to the issues raised in the complaint, I do not believe that the interests of justice will be served by the application of the doctrine in the present case. [55] Accordingly Ms. Sherman's motion and the CRA's request, in response to the motion, to apply the doctrine of issue estoppel are denied. Signed by Karen A. Jensen OTTAWA, Ontario October 5, 2005 PARTIES OF RECORD TRIBUNAL FILE: T975/9504 STYLE OF CAUSE: Simone Sherman v. Revenue Canada RULING OF THE TRIBUNAL DATED: October 5, 2005 APPEARANCES: Dan Rafferty For the Complainant Christopher Leafloor For the Respondent

2005 CHRT 39

CHRT

Public Service Alliance of Canada v. Canada Post Corporation

en

2005-10-07

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7122/index.do

2023-12-01

Public Service Alliance of Canada v. Canada Post Corporation Collection Canadian Human Rights Tribunal Date 2005-10-07 Neutral citation 2005 CHRT 39 File number(s) TT299/1392 Decision-maker(s) Leighton, Elizabeth A.G. Decision Content vlink=blue> CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL DES DROITS DE LA PERSONNE PUBLIC SERVICE ALLIANCE OF CANADA Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADA POST CORPORATION Respondent REASONS FOR DECISION PANEL: Elizabeth Leighton Gerald T. Rayner 2005 CHRT 39 2005/10/07 I. INTRODUCTION A. The Complaint B. The Investigation Stage C. Population D. Setting and Context, 1981 through 1991 II. LEGISLATIVE BACKGROUND A. Nature of Human Rights Legislation B. History of the Canadian Human Rights Act III. THE FUNDAMENTAL ISSUES A. Independence and Impartiality of the Tribunal B. Retroactivity and Validity of the Guidelines C. Proof by Presumption D. Prima Facie Case IV. EXAMINATION OF THE FUNDAMENTAL ISSUES A. Independence and Impartiality of the Tribunal B. Retroactivity and Validity of the Guidelines (i) Background (ii) How is the Concept of "retroactivity" pertinent to this Complaint? a) Submissions of the Parties b) Tribunal's Analysis (iii) Are subsection 8(2) and sections 11-15 of the 1986 Guidelines Valid? a) Submissions of the Parties b) Tribunal's Analysis C. Proof by Presumption V. PRIMA FACIE CASE A. Background and Elements of a Prima Facie Case for a Complaint brought under Section 11 of the Act B. Does the Complainant group and the Comparator group represent, respectively a predominantly female occupational group and a predominantly male ocuupational group, suitable for comparison of work, under the Act? C. Are the Complainant and the Comparator groups employed in the same `establishment'? (i) Evolution of the Definition of Establishment (ii) The `Airlines Case' (iii) Impact on the Current Case of the Federal Court of Appeal Decision in the `Airlines Case' D. Does the comparison of the work of the Complainant group and the Comparator group establish that the work being compared is equal in value? Are the jobs/positions data and the process comparing the work of the Complainant and the Comparator groups reliable? (i) Background (ii) Issues E. Review of Job Information Collected and Methodology Used: Investigation Stage (i) Commission's 1987 Job Evaluations (ii) Commission's 1991 Job Evaluations F. Review Of Job Information Collected And Methodology Used: Tribunal Stage (i) The Professional Team (ii) Phases 1 and 2 (iii) How were the Job Evaluations conducted by the Professional Team? (iv) Two Additional Reviews G. Reliability of Job Information Collected, Methodology Used and Job Evaluations conducted by the Commission and the Professional Team: - Positions of the Professional Team, Canada Post, the Alliance and the Commission (i) The Standard of Reliability (ii) Commission's 1987 Job Evaluations (iii) Commission's 1991 Job Evaluations (iv) Professional Team's 1993/1994 Job Evaluations (v) The Professional Team's Position re: its 1993/1994 Job Evaluations (vi) Canada Post's Position re: the Commission's 1991 and the Professional Team's 1993/1994 Job Evaluations a) Ms. Winter's Testimony b) Mr. Willis' Testimony c) Mr. Wallace's Testimony (vii) The Alliance's Position re: a) Ms. Winter's Testimony b) Mr. Willis' Testimony c) Mr. Wallace's Testimony (viii) The Commission's Position re: Canada Post's Expert Witnesses - Winter, Messrs. Willis and Wallace H. Reliability of Methodology Used by the Professional Team: - Tribunal's Analysis (i) Introduction (ii) The Job Evaluation System Chosen (iii) The Process VI. RELIABILITY OF JOB INFORMATION SOURCES AND RESULTING JOB INFORMATION USED BY THE PROFESSIONAL TEAM A. Background B. FACTS I (i) Composition (ii) Submissions of the Parties and Expert Witnesses (iii) Credibility of Evidence of Expert Witnesses C. FACTS II (i) Composition and Impact D. FACTS I and II Compared to Reliability Standard of the Job Evaluation Industry E. Tribunal's Analysis (i) A Daunting Task (ii) Definitions and Sub-bands of Acceptability VII. WAGE GAP AND WAGE ADJUSTMENT METHODOLOGY A. Introduction B. Submissions of the Parties (i) The Alliance (ii) The Commission (iii) Canada Post (iv) Reply Submissions of the Alliance (v) Reply Submissions of the Commission C. Tribunal's Analysis (i) Preliminary (ii) Review of the Wage Adjustment Methodology Proposals (iii) Sum-up VIII. Non-Wage Forms of Compensation A. Background B. Submissions of the Parties (i) The Commission's Position (ii) The Alliance's Position (iii) Canada Post's Position (iv) Tribunal's Analysis IX. Remedy A. Background B. Remedial Components (i) Award of Lost Wages (ii) Back-Pay - The Compensation Period (iii) Interest (iv) Post- Judgement Interest (v) Special Compensation (vi) Legal Costs (vii) Retention of Jurisdiction X. JOINT UNION-EMPLOYER LIABILITY FOR WAGE DISCRIMINATION A. Canada Post's Submission B. The Alliance's Position C. The Commission's Position D. Tribunal's Analysis XI. ORDERS I. INTRODUCTION A. The Complaint [1] The Public Service Alliance of Canada filed a complaint with the Canadian Human Rights Commission on August 24, 1983, which reads as follows: It is alleged that the Canada Post Corporation as Employer, has violated Section 11 of the Canadian Human Rights Act by paying employees in the male-dominated Postal Operations Group more than employees in the female-dominated Clerical and Regulatory Group for work of equal value. The wage rates of the male-dominated Postal Operations Group exceed those of the female-dominated Clerical and Regulatory Group by as much as 58.9 per cent for work of equal value. It is alleged that sex composition of the two groups has resulted in wage discrimination against the Clerical and Regulatory Group, contrary to Section 11. Corrective Action: That all employees within the CR Group employed by Canada Post Corporation receive wages, as defined in paragraph 11(6) [now section 11(7)] of the Canadian Human Rights Act, equal to the wages of employees within the PO Group performing work of equal value. That this corrective action be made retroactive to October 16, 1981. B. The Investigation Stage [2] Once a complaint is received by the Canadian Human Rights Commission (the Commission), the general procedures followed are those enunciated in the Canadian Human Rights Act1 (the Act). [3] When the Commission receives a complaint for filing under the Act, it may designate an investigator to conduct a preliminary review of the nature and details of the complaint. All parties to the complaint are involved in this review. The respondent's defences to the allegations in the complaint are an integral part of the review. [4] When this review is completed, the Commission has the authority to determine that a valid defence has been submitted by the respondent, and that the complaint, therefore, cannot be substantiated. Alternatively, the Commission has the authority to appoint a conciliator for the purpose of attempting to bring about a settlement of the complaint. A third option is for the Commission to refer the complaint to the Canadian Human Rights Tribunal for an inquiry involving all parties, including the Commission as a representative of the public interest. [5] In the case of a complaint brought under section 11 of the Act, the Commission's authority to conduct its investigation includes authority to gather pertinent job fact data. The Commission may request information from the respondent, such as lists of employees, job descriptions, and related job data including input from supervisory and management personnel and employee interviews. Even on-job-site observations may be requested. [6] The receipt of job fact data is crucial to the Commission's consideration of the complaint and its final recommendation based on the facts it has before it. The value of the work of the male and female employees cited in the complaint needs to be established and compared, as do the wages of the male and female employees. The evaluation process must include consideration of the four factors specified in subsection 11(2) of the Act, namely: skill, effort, responsibility, and working conditions. [7] The Commission's usual practice is to undertake the work evaluation process using a job evaluation committee, and the employer's own existing evaluation plan, provided it is suitable for a complaint brought under section 11 of the Act. Failing this, the Commission must find an alternative job evaluation plan which is unbiased, gender neutral, and appropriate for the task. [8] The Commission must investigate, as well, the appropriateness of the comparator chosen and named in the complaint. [9] Ultimately, the Commission must make its preliminary comparison of the job values and wages between the complainant and the comparator groups named in the complaint. An Investigation Report, based on the Commission findings, will then be drafted. Once the parties involved have vetted it, a Final Investigation Report, with its recommendations, will be presented to the Commissioners of the Commission who will make the final decision regarding the Commission's involvement with the complaint. [10] In the case of the Complaint before this Tribunal, the Investigation Stage was prolonged. There were a number of reasons for this. [11] As early as 1982, even before the Complaint was filed, the complainant, the Public Service Alliance of Canada (the Alliance), and the respondent, Canada Post Corporation (Canada Post), had agreed to work jointly on the development of a job evaluation plan, known as System One. [12] Therefore, during 1984 and most of 1985, the Commission did not pursue its investigation of the Complaint actively. Instead, it made periodic checks on the state of the joint development of System One. Differences of opinion between the Alliance and Canada Post, including the withdrawal, at one point, of the Alliance from active participation in the evaluation development process, led to many delays and limited progress in developing the joint System One plan. Finally, the Commission decided to re-activate its investigation in October 1985. [13] From late 1985 and through 1986, the Commission was active in developing a Job Fact Sheet, a questionnaire intended for use in gathering current job data for the complainant positions - jobs in the Clerical and Regulatory Group (CR's), a group noted in the Complaint as "female-dominated", and for the named comparator positions - jobs in the Postal Operations Group (PO's), noted in the Complaint as "male-dominated". [14] During this time, Canada Post expressed serious concern to the Commission about the design and content of the proposed Job Fact Sheet. Additionally, Canada Post expressed to the Commission its reservations about the investigation process in general. The Commission had indicated that the Job Fact Sheet was to be answered by a sample of the CR group first. It was intended, eventually, to be a prime job data-gathering tool for the Commission's investigation. [15] At the same time that it was expressing its reservations about the Commission's investigation process, Canada Post did answer the Commission's requests for job data information by providing employee printouts and other information. It cautioned that job descriptions and organization charts which were required as attachments to the Job Fact Sheet would often be out-of-date. The Alliance advised the Commission that the job descriptions should be union-approved. [16] By December 1986, a sample of CR employees at Canada Post had completed the Job Fact Sheet, and had been interviewed by Commission staff, using an Interview Guide created by the Commission to clarify answers given on the Job Fact Sheet. Additionally, during the interview process, relevant supervisory staff had been interviewed to clarify answers given by the incumbents sampled. [17] From April to September 1987, a number of Commission staff evaluated the sample of 194 CR positions using the data collected in 1986. System One was the basis for these evaluations, although it was an uncompleted plan, and the Alliance had advised against its use for evaluation purposes. These evaluations were eventually set aside, and not used in the final investigation process. [18] Protracted correspondence, meetings and discussions ensued from late 1987 through to mid-1991 between the Commission and Canada Post concerning the sampling of, and job data collecting from, the PO comparator group. The Commission was unsuccessful in seeking the co-operation of the relevant comparator group unions to collect this information. Moreover, Canada Post questioned the size of the proposed sample of the PO comparator positions, and declined to have the Job Fact Sheet completed by PO employees on company time. [19] Meanwhile, the Alliance was increasingly concerned with the limited progress in the Commission's investigation of the Complaint. The Commission had threatened, on at least two occasions, to invoke section 58 of the Act, to obtain, from Canada Post, information it required to continue its investigation. Meetings involving senior managers from the Commission and from Canada Post were subsequently held, leading to the development, by the Commission, of a preliminary set of 10 "generic" PO job specifications. [20] Eventually, the Commission was able to finalize its 10 "generic" PO job specifications based upon data obtained from Canada Post. This took place from July to October 1991. Although Canada Post indicated that the creation of these "generic" jobs excluded several PO jobs, there never was a resolution to this difficulty. Intervening events, such as a union strike in August 1991, extended the investigation time even more. The Commission moved forward, pushed by the concerns of the Alliance which were made evident by its threat to bring an application for mandamus under the Act to compel the Commission to complete its investigation. Its staff commenced the evaluation of CR and PO Benchmark positions, after which the 10 "generic" PO jobs were to be evaluated and the original sample of 194 CR positions was to be re-evaluated. [21] In the midst of this activity, the Commission's senior investigator was temporarily re-assigned from his position as head of this investigation to address other priorities. To complete the work expeditiously, the PO Supervisory positions were dropped from the Complaint, and the CR sample was reduced from 194 to 93 positions. A consultant was added to Commission staff for the evaluation process which was using, as its evaluation tool, the XYZ Hay Job Evaluation Plan, an off-the-shelf plan. System One could not be used as it had never been accepted by the union, and it was never meant to be used to compare jobs represented by unions other than the Alliance. Moreover, Canada Post had also advised the Commission that System One would not be suitable for evaluating PO jobs. [22] The Commission completed its CR and PO job evaluations and its investigation work in November 1991. There was no briefing session with Canada Post before the draft Investigation Report was released to the parties on December 16, 1991, along with a request to submit any comments by January 6, 1992. Comments were submitted by both parties by late January 1992; the Commission's Final Investigation Report, dated January 24, 1992, did not incorporate any of them. The Final Report concluded that there was a demonstrable wage difference when comparing wages and job values in the male and female-dominated groups named in the Complaint. The Report recommended referral of the Complaint to the Canadian Human Rights Panel (now known as the Canadian Human Rights Tribunal). [23] The Commissioners considered the Final Investigation Report and, having regard to all the circumstances of the Complaint, decided, on March 16, 1992, to institute an inquiry into the Complaint by means of a referral to the Canadian Human Rights Tribunal which would assign the matter to a specific Tribunal panel for a hearing. [24] The Tribunal panel was established on May 11, 1992, a Pre-hearing Conference was held September 21, 1992, and hearings and deliberations got underway on November 25, 1992. The written and oral submissions were completed on August 27, 2003, although written submissions concerning the Decision of the Federal Court of Appeal in the `Airlines Case' [Canadian Human Rights Commission v. Air Canada, Canadian Airlines International Limited and Canadian Union of Public Employees (Airline Division), [2004] F.C.J. No. 483] were submitted in mid-August 2004. In June 2004, the original Chair of this Tribunal, Benjamin Schecter, resigned. C. Population Complainant and Comparator Groups [25] The Commission's Final Investigation Report, dated January 24, 1992, indicates that the total population (with the break-down by job category of each of the complainant and comparator groups) was as follows (presumably as of a particular date during the Investigation Stage, although no effective date is mentioned in the Report): Complainant Group (Clerical and Regulatory Group) CR 2 260 CR 3 950 CR 4 950 CR 5 150 Total Clerical and Regulatory Group 2,3l0 Comparator Group (Postal Operations Group) Internal Mail Processing and Complementary Postal Service Sub-group PO INT 2 1,283 INT 3 2 INT 4 18,020 INT 5 1,205 20,510 External Mail Collection and Delivery Services Sub-group PO EXT 1 17,549 EXT 2 2,224 EXT 3 48 19,821 Supervisory Sub-group PO SUP 1 549 SUP 2 1,343 SUP 3 427 SUP 4 331 SUP 5 96 SUP 6 22 2,768 Total Postal Operations Group 43,099 [26] By way of comparison, the total population levels of the complainant and comparator groups as presented in the documentation (undated) supporting the August 24, 1983 Complaint are as follows: Clerical and Regulatory Group (Complainant) - CR's 2,316 Postal Operations Group (Comparator) - PO's PO INT 25,056 PO EXT 21,661 PO SUP 4,195 PO Total 50,912 D. Setting and Context, 1981 through 1991 [27] To assist in understanding this lengthy and complex case, the Tribunal considers it important that the historical setting and context be identified. In particular, what was going on in the "world" in which all three parties were operating during the crucial years 1981 through 1991? [28] The Canadian Human Rights Act was enacted on July 14, 1977 and proclaimed in force on March 1, 1978. Section 11 of the Act took effect on March 1, 1978. When this Complaint was filed with the Commission on August 24, 1983, a number of other individual and group complaints alleging discrimination under section 11 of the Act had already been brought by the Alliance, and other public and private sector unions. Tribunals were appointed to hear some of the cases but the majority were settled after negotiation, using Commission facilitators, and with the consent of the Commission. [29] The Act, a quasi-constitutional human rights statute, enunciates general principles concerning the prohibition of discrimination on particular grounds. It established a Canadian Human Rights Commission which was given the authority to be actively involved in the evolution of the Act through its handling of complaints, and its development and issuance of Guidelines, under subsection 27(2). Additionally, the Commission was required to undertake or to support research programs relating to its duties, and to foster public understanding and recognition of the purposes of the Act, while discouraging and reducing the various discriminatory practices the Act addresses. All of this, undoubtedly, placed challenging demands on the Commission and its staff during this early period. At the same time, this was a period of increasingly tight fiscal management at both the provincial and federal levels of government. [30] Collective bargaining was introduced to the Canadian Public Service in March 1967 under the aegis of the Public Service Staff Relations Act2 (PSSRA) which provided that the government and the Public Service Commission had to promulgate and declare occupational job categories in groups, as a preliminary to formal unionization of government employees. Each job category had to be defined by listing the groups of employees making up that category. Employees at the Post Office, which was a Department of the Canadian government at the time, were included in the same categories and groups as employees in other government departments, except for employees who were directly involved in the handling of mail. This unique group bore the title, "mail handlers" and included postal clerks, letter carriers, mail dispatchers, supervisory mail handlers, and several other functions involved in the sortation and delivery of mail. [31] The daily movement of massive volumes of different types of mail in a country the size of Canada, with its different time zones and variety of climatic conditions, requires a vast, well-coordinated operational network. Inevitably, such a network includes thousands of corporate or contracted people and thousands of postal outlets in both urban and rural areas, in addition to many mail-processing facilities across the country. The state of employee relations is obviously a vital element in operating such a complex network successfully. Prior to the enactment of the PSSRA in 1967 and the subsequent certification of various unions to represent particular occupational groups of employees within the then Post Office Department, employees tended to be represented, informally, by staff associations. The earliest of such postal associations is believed to have been formed in 1889. [32] In the 1960's and 1970's, the Post Office Department experienced one of its most unsettled periods of labour relations. While this was a period when the postal code system was introduced (1971) and mechanized mail processing technology was evolving, it was also a period of many management-employee disputes leading to several major strikes. [33] The Post Office Department was succeeded by Canada Post Corporation with the proclamation of the Canada Post Corporation Act3 on October 16, 1981. One of the objects of the new Corporation, specified in the enabling legislation, was "...the need to conduct its operations on a self-sustaining financial basis while providing a standard of service that will meet the needs of the people of Canada...".4 Creation of the Crown Corporation appeared to have the support of all national political parties and most organized labour, business and consumer organizations. There also seemed to be a consensus that one of a number of desirable objectives for the new Corporation would be the reform of its collective bargaining structure in the interests of achieving labour peace. [34] Upon becoming a Crown Corporation, the bargaining units certified under the PSSRA were deemed to be bargaining units under the Canada Labour Code5, and the bargaining agents representing these bargaining units were to remain in place, presumably to provide a transitional period of relative stability and an opportunity for the new Corporation to reorganize. This did, however, pre-empt an early start to the reform of the collective bargaining process which was further delayed by the passage, in 1982, of the federal `6 and 5' cost control legislation. The Canada Labour Relations Board (CLRB) issued a policy statement in February 1984 calling for an overall review of the bargaining unit structure of the Corporation at an appropriate time in the future. This review finally got underway in May 1985 when the Corporation filed its application with the CLRB for study of the appropriateness of all of its then existing bargaining units. [35] The 1985 CLRB study took the form of a Bargaining Unit Review Process (BURP) with the first phase of hearings concluding in December 1987; CLRB's first decision was released on February 10, 1988. The CLRB heard from eight unions involving twenty-six bargaining units (representing about 58,000 employees), and ordered that they all be consolidated into four bargaining unions and four bargaining units. The four unions are as follows: Canadian Postmasters and Assistants Association (CPAA) Canadian Union of Postal Workers (CUPW), comprising the Letter Carriers Union of Canada (LCUC), the International Brotherhood of Electrical Workers (IBEW), the General Labour and Trades Group, the General Services Group, and the original CUPW Public Service Alliance of Canada (PSAC), representing administrative, technical and professional employees, involving the combination of 15 separate units into one collective bargaining unit Association of Postal Officials of Canada (APOC), representing operational supervisory employees but excluding lead hands and first-line managers [36] It was not until 1988 that the bargaining unit consolidation occurred and the 1989-1992 round of labour negotiations was the first held with representatives of the consolidated units - some eight years after achieving Crown Corporation status. Understandably, while the BURP study was on-going, negotiations continued between the Corporation and the original 26 bargaining units. In fact, there were active negotiations during this period with LCUC, CUPW, CPAA, APOC and PSAC, some overlapping with each other and some with special mediation assistance. Despite vigorous negotiations, three strikes occurred in the 1980's, one of which involved PSAC. [37] The 1989-1992 round of negotiations between the Corporation and CUPW were particularly challenging for all parties, leading to unsuccessful mediation, rotating strikes and Parliamentary back-to-work legislation in 1991. Agreements were concluded during this same period with the other three unions - CPAA, APOC and PSAC - without work stoppages. II. LEGISLATIVE BACKGROUND A. Nature of Human Rights Legislation [38] Human rights legislation is a child of the 1970's. Although at the beginning of the twentieth century, there had been demands, often by women, for equality rights, it would be decades before legislation, both provincial and federal, addressed discrimination in general. [39] Discrimination in the area of work was addressed after the First World War when the International Labour Organization was founded in 1919. At about that time, the Canadian government legislated a minimum wage for women. [40] The Universal Declaration of Human Rights6 was proclaimed by the General Assembly of the United Nations in December 1948. It was viewed, at the time, as the first step in the formulation of an "international bill of human rights" that would have legal as well as moral force. Article 23 of this Declaration reads in part that "[e]veryone, without any discrimination, has the right to equal pay for equal work". [41] By 1951, the principle of equal pay for work of equal value was articulated by the International Labour Organization in its C100 Equal Remuneration Convention7. This Convention was ratified by Canada in 1972 and signalled Canada's commitment to the active pursuit of the human rights of workers, including the principle of "equal pay for work of equal value". This commitment was reaffirmed when Canada ratified in 1976 the United Nations International Covenant on Economic, Social and Cultural Rights8, the International Covenant on Civil and Political Rights9, and the Optional Protocol to the International Covenant on Civil and Political Rights10. These United Nations Covenants made a reality of the dream for an "International Bill of Human Rights". [42] Article 7 of the International Covenant on Economic, Social and Cultural Rights recognizes the right of everyone to "[f]air wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work".11 [43] In 1970, Canada established a Royal Commission to inquire into the Status of Women. The Royal Commission's Report focused on continuing discrimination involving women in the workplace.12 Female participation in the Canadian workforce had continued to grow over the decades, increasing during the 20-year period 1960 - 1979 by the same percentage as it had taken sixty years to achieve between 1901 and 1961. [44] Canada's commitment to eliminate discrimination in the workplace was enlarged to include a broader definition of human rights by the promulgation of the Canadian Human Rights Act in 1978 and, in 1981, by Canada's signing of the United Nations Convention on the Elimination of all Forms of Discrimination against Women.13 [45] The general goals of human rights legislation are the prevention of discrimination and the promotion of public education to eliminate discrimination. These goals are based on society's belief in equality rights for its members. After the fact, they are an attempt to make victims of discrimination "whole" either through consensual or mandated resolution. Dickson, C.J. noted in Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892 that the general purpose of the Canadian Human Rights Act, as set out in section 2, is "...the promotion of equal opportunity unhindered by discriminatory practices...".14 [46] A legislative protection of human rights demands statutory interpretation which is broad and purposive, which is made in "...a manner consistent with its overarching goals...".15 In other words, an interpretation of human rights legislation must advance the purpose of that legislation to educate the public and to eradicate discrimination. To do this, the interpretation should give the legislation a generous reading, avoiding a narrow, overly technical analysis. Such an interpretation will construe the rights in the legislation broadly and liberally, while interpreting the legislation's restrictions and exceptions in a stricter manner. [47] The Supreme Court of Canada noted in Winnipeg School Division No. 1 v. Craton, [1985] 2 S.C.R. 150 that: Human rights legislation is of a special nature and declares public policy regarding matters of general concern. It is not constitutional in nature in the sense that it may not be altered, amended, or repealed by the Legislature. It is, however, of such a nature that it may not be altered, amended, or repealed, nor may exceptions be created to its provisions, save by clear legislative pronouncement.16 [48] This characterization of the Canadian Human Rights Act as quasi-constitutional demands a thoughtful and modern approach to its interpretation. The following commentary, taken from E.A. Dreidger, Construction of Statutes17and Ruth Sullivan, Dreidger on the Construction of Statutes18 indicates the modern, contextual approach to statutory interpretation: ...the words of an Act are to be read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, and the intention of Parliament.19 There is only one rule in modern interpretation, namely, courts are obliged to determine the meaning of legislation in its total context, having regard to the purpose of the legislation, the consequences of proposed interpretations, the presumptions and special rules of interpretation, as well as admissible external aids. In other words, the courts must consider and take into account all relevant and admissible indicators of legislative meaning.20 The meaning of words in legislation depends not only on their immediate context but also on a larger context which includes the Act as a whole and the statute as a whole. The presumptions of coherence and consistency apply not only to Acts dealing with the same subject but also, albeit with lesser force, to the entire body of statute law produced by a legislature...Therefore, other things being equal, interpretations that minimize the possibility of conflict or incoherence among different enactments are preferred.21 [49] In addition to these commentaries, the Supreme Court has underlined the need to use the Interpretation Act, as did Iacobucci, J. when he indicated that: I also rely upon s. 10 of the Interpretation Act, R.S.O. 1980, c. 219, which provides that every Act `shall be deemed to be remedial' and directs that every Act shall `receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit'.22 [50] In addition to a consideration of the nature of human rights legislation, and the consequent principles of statute interpretation when dealing with such special legislation, this Tribunal must also, during its decision-making process, consider the history of the Canadian Human Rights Act. That history is examined in the next several paragraphs. B. History of the Canadian Human Rights Act [51] As already noted, the Canadian Human Rights Act was enacted in 1977, and proclaimed in force in early 1978. Even though over 25 years have passed, equality rights remain the subject of litigation and discussion. Mme Justice L'Heureux-Dube, speaking after receiving an Honourary LL.D. from the Law Society of Upper Canada in 2002, noted that: The isms and phobias - racism, sexism, homophobia, and the malevolent rest - are all fountainheads of discrimination and harassment. They have no place in this era of human rights. ...Equality will be the battle of the millennium. At times, equality's standard bearers will feel like they are standing alone and will be harshly criticized for their positions. But, for those who do what is right, affirmation and solidarity come in due course. For it is my firm belief that justice without equality is no justice at all.23 [52] Section 2 of the Canadian Human Rights Act addresses the goal of equality. It notes that the purpose of the Act is to: ...give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted. [53] The Minister of Justice at the time, the Honourable Ron Basford, indicated in May 1977 during the Parliamentary debates which preceded the enactment of the Act, and more particularly, section 11 of the Act, that: There will no doubt be some problems ...[with] the concept [of equal pay for work of equal value]. The federal government has adopted a different approach: that we should legislate the principle and, through the Commission and through its efforts at setting out guidelines, solve those problems...as to how that is to be implemented and how it is to be brought about.24 [54] In other words, section 11 of the Act is an enunciation of a principle, without legislating stringent rules indicating how that principle is to be effected. The Honourable Ron Basford stated that this section of the proposed Act was fashioned to address the specific problem of the occupational segregation of women, with its accompanying historical lower wage rates which were based on the undervaluing of women's work in the marketplace. The need to address this problem had been one of the underlying reasons for the International Conventions of the mid-twentieth century, and was a key recommendation of the Report of the Royal Commission on the Status of Women.25 [55] From these International Conventions and the Royal Commission Report, the broad concept arose of basing wages on the value of work being done. Section 11 of the Act deals with the principle that there should be no discrimination in wage rates based on sex. The basis for the wage should be the value of the work being done. [56] As the Canadian commitment to International Conventions, and to the recommendations of its own federally-appointed Royal Commission, was addressed by section 11 of the Act, its purpose must be seen in that historical light. [57] Accordingly, section 11, although complaint-driven, as is the Act in general, may be interpreted as Parliament's means of addressing systemic discrimination based upon sex, in employment. [58] Although the principle of "equal pay for work of equal value" is the basis for section 11, the Act does not articulate how the principle is to be implemented. While section 11 spells out for the complainant the criteria to be used to assess value of work - that is, the composite of the four factors of skill, effort, responsibility, and working conditions - the evaluation process to be employed is not articulated. [59] The Commission is given broad authority to deal with the intricacies of section 11, such as the ability to issue binding guidelines concerning certain concepts in the section. This guideline-making power creates what can be described as statutory rules to guide the interpretation of section 11, analogous to the creation of regulations for other legislation. [60] The Complaint before this Tribunal demands an interpretation of all aspects of section 11. It is believed to be the first complaint based on section 11 of the Act, referred to the Canadian Human Rights Tribunal, to require such a comprehensive review. III. THE FUNDAMENTAL ISSUES [61] There are four fundamental issues to be addressed as the Tribunal examines this Complaint. These are identified below, and will be examined in detail in Sections IV, V and VI of this Decision. A. Independence and Impartiality of the Tribunal [62] Is the Tribunal an institutionally independent and impartial quasi-judicial body? In particular, does the Act create a reasonable apprehension of institutional bias in the Tribunal because it gives the Commission power to issue Equal Wages Guidelines26 (the Guidelines), which are binding on the Commission, a party before the Tribunal, and binding on the Tribunal? B. Retroactivity and Validity of the Guidelines [63] Can a statute be applied retroactively or retrospectively? Can a delegated power to issue subordinate legislation, such as the Guidelines, be exercised retroactively or retrospectively? [64] What is the test for the validity of subordinate legislation? Are subsection 8(2) and sections 11 to 15 of the 1986 Guidelines27 valid? C. Proof by Presumption [65] Evans, J. noted that: [S]ubsection 11(1) can ... be seen to have tackled the problem of proof by enacting a presumption that, when men and women are paid different wages for work of equal value, that difference is based on sex, unless it can be attributed to a factor identified by the Commission in a guideline as constituting a reasonable justification for it.28 [66] Although all parties in this Complaint accept the above statement by Mr. Justice Evans, the question arises: Is this presumption a presumption rebuttable by factors other than those identified in the Guidelines? D. Prima Facie Case [67] Has the complainant established a prima facie case of discrimination, based on section 11 of the Act? [68] A prima facie case has been defined as follows: ...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.29 [69] The standard of proof to determine whether such a prima facie case has been established by the complainant is the civil standard, a balance of probabilities. Once a prima facie case has been established by the complainant, the evidentiary burden shifts to the respondent to show a justification for the discrimination, using the balance of probabilities as the standard of proof. IV. EXAMINATION OF THE FUNDAMENTAL ISSUES A. Independence and Impartiality of the Tribunal [70] Canada Post first raised this issue in May 1998 when its newly retained counsel advised the Tribunal that a Motion concerning "the judicial and institutional independence" of the Tribunal was being considered. [71] The issue of the Tribunal's independence and impartiality had arisen after the release, on March 23, 1998, of a decision by McGillis, J. in the Federal Court (Trial Division).30 [72] That decision was the culmination of a judicial review of a decision made by the tribunal appointed to hear a complaint, brought under section 11 of the Act by some Bell Canada employees and their unions. After hearing argument on Bell Canada's Motion requesting that the tribunal find itself unable to proceed due to an apprehension of bias, the tribunal ruled that it was "...an independent quasi-judicial body, institutionally capable of providing a fair hearing in accordance with the principles of natural justice".31 [73] The judicial review application was allowed, the Federal Court concluding that the legislative scheme of the Act, at the time, did not provide tribunal members with sufficient security of tenure or financial security to allow the tribunal to operate with independence and impartiality. Of concern was a link between the tribunal members' remuneration and the Commission, which would be a party before most tribunals. Additionally, McGillis, J. indicated that there were concerns about the Commission's ability to make binding Guidelines. McGillis, J. commented, in obiter dicta, that "...the manner in which, in the opinion of the Commission, any provision of this Act applies in a particular case..." should cause concern for the ability of the tribunal to act independently and impartially.32 Such a problem could, suggested McGillis, J., be corrected by making the Guidelines non-binding on the tribunal. [74] Therefore, all proceedings in the Bell Canada complaint were quashed and an Order was rendered that no further proceedings in the complaint take place until legislative changes were made to address the relevant problems. [75] Canada Post brought its Motion in June 1998, requesting the following: an Order or ruling by the Tribunal that it is not an independent or impartial tribunal capable of providing a fair hearing in accordance with the principles of fundamental justice guaranteed by section 2(e) of the Bill of Rights, R.S.C. 1985, because, inter alia, it is bound by the Guidelines in interpreting section 11 of the Canadian Human Rights Act issued by the Canadian Human Rights Commission, a party in interest before it; an Order or ruling by the Tribunal that it is not an independent or impartial tribunal capable of providing a fair hearing in accordance with the principles of fundamental justice guaranteed by section 2(e) of the Bill of Rights because the remuneration of the Tribunal's members is fixed by the Commission and, from the beginning of the Tribunal hearings until January 1, 1997, was provided to the members by cheques issued by the Commission; in the alternative, an Order by the Tribunal referring the questions raised above to the Federal Court under section 18.3 of the Federal Court Act R.S.C. 1985 c. F-7 and Rules 320 and 323 of the Federal Court Rules, 1998. [76] The Motion was argued in August/September 1998. The Tribunal issued its decision on October 21, 1998, dismissing Canada Post's Motion, as follows: With regard to the issues of financial security in a tribunal and the security of tenure of tribunal members, the Tribunal concludes that there is no question that waiver is available as an objection to an allegation of a reasonable apprehension of bias, as demonstrated by authorities cited.... One fact is indisputable. At no time during the last six years, did Mr. Juriansz, counsel for the Respondent, raise the issues of security of tenure or financial security of the Tribunal... The Tribunal concludes that, on a balance of probabilities, the Respondent would have had the knowledge to object, in a timely fashion, to the jurisdiction of this Tribunal based upon a reasonable apprehension of bias arising from these two issues. Therefore, because such an objection was never made, for whatever reason, the Respondent must be deemed to have impliedly waived its right to challenge the independence or impartiality of the Tribunal on the basis of the said two issues.33 [77] Concerning Canada Post's argument that the binding nature of the Guidelines, created by the Commission, a party before the Tribunal, produced a situation where the Tribunal could not provide a fair hearing in accordance with the principles of fundamental justice, the Tribunal ruled as follows: With respect to the binding nature of the Guidelines pursuant to section 27(3) of the Act, the Tribunal finds that from the outset of the hearing there was an undisputed understanding amongst the parties of the day to address this issue in final submissions, after hearing evidence of all the parties. Another way of looking at this particular matter is that the exercising of the Respondent's right to object to the issue of the binding nature of the Guidelines on the grounds of invalidating the Tribunal's independence and impartiality, was postponed, by consent, from the start of the proceedings to closing argument, because all parties agreed it was wise that the Tribunal hear evidence first so the Tribunal would understand what the Guidelines were intended to accomplish. The Respondent's right to object has, therefore, not been rescinded-- it has been reserved and remains in place to be exercised "at the end of the day". There is no question of waiver here. Nothing has been waived with respect to the Guidelines issue - just an understanding and concurrence openly and fairly arrived at, to address that issue later on.34 [78] Accordingly, the Tribunal continued to hear evidence. [79] On June 30, 1998, a number of amendments to the Act came into effect, including the following: Subsection 27(2) provides for the Commission to issue a guideline binding on the Commission and a tribunal only "in a class of cases described in the guideline" rather than "in a particular case or in a class of cases". Subsection 48.2(2) recognizes that a tribunal member whose appointment expires "... may, with the approval of the Chairperson, conclude any inquiry that the member has begun". Subsection 48.6(1) provides that tribunal members shall be paid "... such remuneration as may be fixed by the Governor in Council" rather than "... as may be prescribed by by-law of the Commission".35 [80] After the Act had been amended in June 1998, the Vice-Chairman of the Canadian Human Rights Tribunal decided to proceed with the tribunal hearing of the Bell Canada complaint. Bell Canada, however, maintained its position that, even with the amendment to subsection 27(2) of the Act, the tribunal was precluded from making an independent judgement in any class of cases in which binding Guidelines were issued by the Commission, a party in interest before the tribunal. It argued, in a judicial review application of the April 1999 decision36 to proceed with the Bell Canada hearing, that the binding nature of the Guidelines leads to an inevitable perception of bias and lack of institutional independence. Tremblay-Lamer, J. of the Federal Court (Trial Division) agreed. In a decision rendered on November 2, 2000, the binding nature of the Guidelines issued by the Commission was found to be incompatible with the guarantees of institutional independence and impartiality necessary to the tribunal's decision-making powers.37 [81] The Federal Court of Appeal decision of May 24, 2001 reversed the decision of Tremblay-Lamer, J.38 This Appeal decision was upheld by the Supreme Court of Canada, which issued its decision on June 26, 2003.39 It found that subsections 27(2) and (3) of the Act, as amended, relating to the issuance of binding Guidelines, were not inconsistent with section 2(e) of the Canadian Bill of Rights, S.C. 1960, c. 44, which requires that parties be given a "fair hearing in accordance with the principles of fundamental justice". Neither were the subsections inconsistent with the constitutional principle of adjudicative independence. Therefore, those subsections of the Act were found to be operable and applicable. [82] The Supreme Court of Canada addressed Bell Canada's specific argument that the binding nature of the Guidelines creates a perception that a tribunal, hearing a complaint, lacks independence and impartiality. Further, Bell Canada had argued that guidelines, created by a party before it, and binding on the tribunal, would create an apprehension of bias. The Supreme Court noted the following: As the Commission has readily acknowledged, the guideline power is constrained. The Commission, like other bodies to whom the power to make subordinate legislation has been delegated, cannot exceed the power that has been given to it and is subject to strict judicial review ... The Tribunal can, and indeed must, refuse to apply guidelines that it finds to be ultra vires the Commission as contrary to the Commission's enabling legislation, the Act, the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights. The Tribunal's power to `decide all questions of law or fact necessary to determining the matter' under s. 50(2) of the Act is clearly a general power to consider questions of law; including questions pertaining to the Charter and the Canadian Bill of Rights ... No invalid law binds the Tribunal. Moreover, the Commission's guidelines, like all subordinate legislation, are subject to the presumption against retroactivity. Since the Act does not contain explicit language indicating an intent to dispense with this presumption, no guideline can apply retroactively. This is a significant bar to attempting to influence a case that is currently being prosecuted before the Tribunal by promulgating a new guideline. Finally, any party before the Tribunal could challenge a guideline on the basis that it was issued by the Commission in bad faith or for an improper purpose; and no guideline can purport to override the requirements of procedural fairness that govern the Tribunal.40 Parliament's choice was obviously that the Commission should exercise a delegated legislative function. Like all powers to make subordinate legislation, the Commission's guideline power under ss. 27(2) and 27(3) is strictly constrained. We fail to see, then, that the guideline power under the Act would lead an informed person, viewing the matter realistically and practically and having thought the matter through, to apprehend a `real likelihood of bias'.41 [83] Thus, the Supreme Court of Canada has answered the argument about the operation of the Guidelines and their impact upon the impartiality and independence of this Tribunal. That argument was left "to the end of the day" in the Tribunal's decision on Canada Post's 1998 Motion. The Supreme Court's lengthy discussion of the Commission's guideline-making power under the Act is as applicable to the power given to the Commission when the Act was first enacted as it is today. [84] In its oral submission on the Supreme Court's decision in the Bell Canada case, Canada Post maintained its stance that the Supreme Court decision did not address tribunals that were constituted and operating prior to the enactment of the 1998 amendments to the Act. Canada Post cited the opening paragraph of the Supreme Court decision in Bell Canada which identified the issue before the Court as being whether the Tribunal lacked independence and impartiality because of the power of the Commission to issue guidelines "...concerning a `class of cases'..." which would be binding on the tribunal. [85] The Supreme Court was therefore, according to Canada Post's submission, addressing post-1998 tribunals. It was not until the 1998 amendments that the Commission's guideline-making power was confined to a `class of cases'. Prior to the 1998 amendments, former subsection 27(2) of the Act authorized the issuance of guidelines in respect of `a particular case' as well as a `class of cases'. [86] Canada Post's argument was that the current Tribunal, having been established in 1992, was not encompassed by the Supreme Court's Bell Canada decision. [87] The Commission's position on this matter was that it had been specifically dealt with by the Federal Court of Appeal in the unanimous decision in Northwest Territories v. Public Service Alliance of Canada, [2001] F.C.J. No. 791. At paragraph 41 of that decision, the Federal Court of Appeal noted, as follows: The appellant [Government of the Northwest Territories] contends that the amended provision still compromises the independence and impartiality of the Human Rights Tribunal Panel assigned to hearing the complaint against it. The appellant assumed, rightly so in my view, that subsection 27(3) as it now exists in its more restricted form due to the amendment to subsection 27(2) applies to the hearing of the complaint against it ... It is reasonable in the circumstances to infer that Parliament intended the new but more limited subsections 27(2) and (3) to continue to apply to inquiries in respect of a class of cases, such as this one, commenced before the amendment and continued thereafter, especially as the 1998 amendment was remedial and aimed at suppressing a possible violation of the requirements of natural justice. The combined effect of the amendment and the transitional provision was, on the one hand, to restrict the CHRC's power to issue binding guidelines to classes of cases and, on the other hand, to allow the guidelines already issued in respect of a class of cases to be binding on the three members of the Human Rights Tribunal Panel completing the inquiry in this case. [88] The Court of Appeal, in the Commission's view, concluded that the amended section 27 applied to the proceedings of the Northwest Territories case despite the fact that its tribunal had been appointed prior to the 1998 amendments. The panel continued under the transitional provisions of the Act while not interfering with the application of the amended Act. Also, no binding guidelines specific to the appellant's case had been issued by the Commission. [89] The Commission argued that, since the Northwest Territories case was governed by the same pre-1998 provisions as this Tribunal, the Court of Appeal's decision, which is uncontradicted by the Supreme Court's decision in Bell Canada, is equally applicable and, indeed, binding on this Tribunal. [90] As with the Northwest Territories case, this Tribunal continued under the Act's transitional provisions and was bound by the section 27 amendment of 1998. Finally, no case specific guideline had been issued by the Commission. [91] The Tribunal finds the Commission's submission to be more persuasive, and agrees that the Federal Court of Appeal decision in the Northwest Territories case is relevant and binding on its deliberations. [92] This Tribunal, for all the reasons noted in this Section, finds that it is, itself, an independent and impartial quasi-judicial body, capable of providing a fair hearing in accordance with the principles of fundamental justice. B. Retroactivity and Validity of the Guidelines (i) Background [93] In addition to being a complete answer to Canada Post's argument concerning the binding nature of the Guidelines in relation to the independence and impartiality of the Tribunal, the Supreme Court of Canada has also, in its decision of June 200342, addressed the issue of the retroactivity and validity of the Guidelines. [94] As noted in paragraph [82], above, although the Guidelines are described as "binding" they are binding on the Tribunal only if they are not invalid, for "no invalid law binds the Tribunal". The Tribunal may find that the Guidelines have been drafted by the Commission in such a way that they "exceed the power that has been given to it...[and are therefore,] ultra vires the Commission as contrary to the Commission's enabling legislation, the Act, the Canadian Charter of Rights and Freedoms, and the Canadian Bill of Rights". [95] Additionally, the Supreme Court addressed the "retroactivity" of the Guidelines. It noted that: ...the Commission's guidelines, like all subordinate legislation, are subject to the presumption against retroactivity. Since the Act does not contain explicit language indicating an intent to dispense with this presumption, no guideline can apply retroactively. This is a significant bar to attempting to influence a case that is currently being prosecuted before the Tribunal by promulgating a new guideline.43 [96] As the Supreme Court also noted, "...any party before the Tribunal could challenge a guideline on the basis that it was issued by the Commission in bad faith or for an improper purpose...".44 [97] Before this Tribunal, Canada Post argued, based upon its interpretation of the presumption against retroactivity, that the Guidelines which must be used for this Complaint are those which were in force at the time the Complaint was filed with the Commission in 1983. Therefore, the argument is that only the 1978 Guidelines (amended in 1982)45 should be of interest to this Tribunal in its decision-making process. [98] Additionally, Canada Post argued that, if the Tribunal rejects its submissions concerning retroactivity and accepts the 1986 Guidelines as pertinent to this Complaint, some of those 1986 Guidelines should be found to be invalid. Canada Post challenges the 1986 Guidelines, subsection 8(2), and sections 11 through 15. [99] There has been no challenge to a guideline based upon an argument that the guideline was promulgated in bad faith or for an improper purpose. Guidelines are promulgated only after the Commission has received input from various interest groups such as federally regulated companies, government agencies, and government departments. In this case, amongst those interested and actively involved in giving advice to the Commission before the promulgation of the 1986 Guidelines, was Canada Post. (ii) How is the Concept of "retroactivity" pertinent to this Complaint? a) Submissions of the Parties [100] All parties agree, in submissions concerning retroactivity, that, as Canada Post articulated in its submissions, "retroactivity is a question of what law applies at a particular point in time".46 [101] As Canada Post noted in its submissions concerning retroactivity, administrative law academics, like Sullivan and Dreidger, have written volumes on the retroactive application of the law. In the words of Canada Post's counsel, "a retroactive application of a law changes the past effects of a past situation, a situation giving rise to the effects is past and the effects are past".47 [102] Canada Post submissions continued, noting that: a retrospective application of the law change[s] the future effects of past situations. The situation with which we are concerned is already past but the effects haven't all past (sic). Some are in the future, and if the law can change them it is a retrospective application ... An immediate application of the law changes the future effects of an ongoing situation ... the law applies as of the day it comes into force. So, anything that is happening after that, the law applies ... the prospective application of law, where the law that comes into force can only apply to situations and effects that arise after ...What about the situations that had already started before it came into effect?... The old law survives, the law that has been repealed, the Guideline that has been revoked, applies, but only for the limited purpose of governing the situations until they are over ... So, even though the Act says that Guidelines are revoked when new Guidelines are issued ... the concept of survival overrides that and let's (sic) the old law apply if it is necessary to do so because the new law is only prospective.48 [103] These submissions by Canada Post outline the different applications of the law based on the timing of what Canada Post has called "situations" and the necessity that the law applicable to those "situations" be used. In its argument, Canada Post emphasized the prejudice which would accrue to any respondent who was unable to know, with specificity, what the complaint against him or her was. Without that knowledge, Canada Post argued, a respondent would be deprived of an ability to make a full answer to the complaint. The necessity for fairness to all is the foundation for the presumption against retroactivity. In general, Canada Post argued, the "rules of the game" must be known before the game is played; that is to say, a respondent must know what law is applicable at the time the respondent is served with a complaint, unless there is specific language in the legislation which allows for a change, "mid-game". [104] This argument anticipated the Supreme Court of Canada's review of retroactivity in the Bell Canada decision of June 2003. That decision specifically pointed to the lack of inclusion in the Canadian Human Rights Act of an intention that the Guidelines be applied retroactively. Therefore, the Guidelines cannot be applied retroactively. [105] If the Guidelines cannot be applied retroactively, what is the "situation" which pinpoints the time when a specific guideline is to be applied? During its submissions on this topic, Canada Post presented the hypothetical example of a contractual summer employment arrangement involving an hourly minimum wage rate which, through legislation in mid-summer, changed. In such a case, the wage rate changes when the legislation is promulgated, notwithstanding the contractual arrangement. The new wage rate is not retroactive to the beginning of the contract. This example involves specificity. There is a contract. There is a specific legislated change as of a specific date. There is no grey area in the example. An allegation of discrimination is not part of the equation. [106] Canada Post argued that, similarly, there is no grey area in the Complaint before this Tribunal. The date the Complaint was brought to the Commission should be the date which seals the law applicable to the Complaint. Canada Post argued that a respondent must know what law is applicable at the time the respondent faces a complaint. According to Canada Post, this is important because, from the time a complaint is made, a respondent must know what the rules are in order to articulate its position. During the investigation of a complaint, the respondent's position will be influenced by those "rules". If there is a change in the "rules" after a complaint is brought, Canada Post argued, the respondent will be prejudiced. [107] Canada Post made a further argument that employing the 1986 Guidelines would interfere with its vested right to rely on the defences it had under the 1978 Guidelines when the Complaint was first filed. In particular, Canada Post cited Gustavson Drilling (1964) Ltd. v. Minister of National Revenue49 to support the position that regardless of whether legislation is retroactive or even retrospective, it is presumed that there is no intention to interfere with vested rights (unless the legislature intends otherwise). [108] The protection of vested rights, argued Canada Post, is reinforced by the federal Interpretation Act where the term `enactment' includes a statute or a regulation. Section 43(c) of the Interpretation Act reads as follows: 43. Where an enactment is repealed in whole or in part, the repeal does not... (c) affect any right, privilege, obligation or liability acquired, accrued, accruing, or incurred under the enactment so repealed... [109] Canada Post maintained that its vested rights would be infringed if the 1986 Guidelines were applicable because they impose on the Tribunal rules for interpreting section 11 of the Act which differ from the 1978 Guidelines rules in ways that are important to Canada Post's defence. Canada Post cited a number of such differences which it believed would produce an unfair result. [110] As already noted, all parties agreed that there is a presumption against retroactive application of legislation unless otherwise provided in the enabling statute. The Commission also agreed that, in the context of subordinate legislation, there is a legal restriction against such application rather than a presumption. [111] Further, the Commission agreed with Canada Post that the definition of retroactive application is the application of a new law to past facts. The Commission, however, stressed that the facts must be completed. [112] In referring to the temporal application of law, the Commission's submissions drew on Professor Sullivan's writings regarding the need to situate facts in time: Legislation clearly is retroactive if it applies to facts all of which have ended before it comes into force. Legislation clearly is prospective if it applies to facts all of which began after its coming into force. But what of on-going facts, facts in progress? These are either continuing facts, begun but not ended when the legislation comes into force, or successive facts, some occurring before and some after the commencement. The application of legislation to on-going facts is not retroactive because ... there is no attempt to reach into the past and alter the law or the rights of persons as of an earlier date...[emphasis added]50 [113] It is therefore, in the Commission's view, important to identify the particular set of facts that is relevant to the case concerned. In the case before the Tribunal, it is a question of what facts were in play when the 1986 Guidelines came into force. The Commission argued that the facts at that time were clearly "on-going" because the Complaint addresses alleged systemic wage discrimination. [114] Drawing on Professor Sullivan's writings again, the Commission noted: Such an application [to on-going facts] may affect existing rights and interests, but it is not retroactive. Legislation that applies to on-going facts is said to have "immediate effect"...51 [115] The Commission emphasized the on-going nature of systemic discrimination by referring to a decision of Mr. Justice Hugessen: Systemic discrimination is a continuing phenomenon ... By its very nature, it extends over time.52 [116] Consequently, the Commission concluded that when the 1986 Guidelines came into effect, they applied immediately and generally to all on-going facts - that is, facts that started in the past and continued to the present or future. The facts involved in an allegation of systemic wage discrimination would be such on-going facts. [117] The Commission argued, additionally, that the 1986 Guidelines did not apply new legal consequences to past facts, and did not change the past legal consequences of past facts. It was, therefore, not a retroactive application of the 1986 Guidelines. Rather, the 1986 Guidelines codified the evolving Commission practice concerning the interpretation of section 11 of the Act. [118] With respect to Canada Post's position that its vested rights would be infringed by the use of the 1986 Guidelines, the Commission argued that the concept of vested rights is not easily applied in the field of human rights adjudication. The Commission noted that the only cases cited by Canada Post in support of its position related to relevant facts that were in the past and were found in a torts context. This is in stark contrast with the Complaint which deals with on-going facts in a human rights context. [119] The Commission also argued that it is difficult to visualize how the 1986 Guidelines could interfere with pre-existing rights or impose new obligations on Canada Post, because the Guidelines simply interpret and give precision to rights and obligations that pre-existed their enactment. They do not in any way lead to changes in the law. [120] Moreover, the Commission asserted, the 1986 Guidelines did not remove any defences previously recognized by the 1978 Guidelines on which Canada Post might have wished to rely. In fact, the 1986 Guidelines added to the list of `reasonable factors' found in the 1978 Guidelines but Canada Post had not relied on any `reasonable factor' defences. Therefore, the change in the 1986 Guidelines concerning `reasonable factors' was not something which adversely affected Canada Post's position. [121] The Commission observed that the presumption against interference with vested rights normally involves ambiguity in the interpretation of statutes or regulations. The Commission's submission was that there is no ambiguity in this case, since the regulation-making power in section 27 of the Act makes it clear that guidelines apply immediately: 27(3) A guideline issued under subsection (2) is, until it is revoked or modified, binding on the Commission and any member or panel assigned under...(emphasis added) [122] Finally, the Commission made the point that even if there were ambiguity, the presumption against interference with vested rights protects only those rights that had vested at the time of legislative or regulatory amendment. Not only is the legal scope of vested rights important, but also of import are the public policy issues that arise from the presumption. [123] In 2001, Marceau, J. noted in Veale v. Law Society of Alberta, that "[t]here is no concrete definition of what constitutes a `vested right', primarily because it is difficult to generalize across the cases and as each case must be studied individually".53 In speaking of the review of retrospective legislation, Marceau, J. indicated that judges are often faced with a policy conundrum - "...whether to apply the new and improved law for the greater good even though this may be unfair to some, or to delay the application of that law in respect of some because of the injustice they would suffer".54 [124] The Commission argued that the 1986 Guidelines benefit the greater good by bringing much needed procedural detail to the interpretation of section 11 of the Act, while causing no injustice to Canada Post. [125] For all these reasons, the Commission concluded that the presumption against interference with vested rights does not apply in this instance. b) Tribunal's Analysis [126] Canada Post is clear in stating its position that neither a statute nor subordinate legislation can be applied retroactively, and the date this Complaint was brought to the Commission should be the date which seals the applicable law. Canada Post also argued that the 1986 Guidelines would infringe on its vested right to rely on defences it had under the 1978 Guidelines which were in effect when the Complaint was filed with the Commission in 1983. Hence, the 1978 Guidelines should prevail. [127] Put another way, Canada Post argued that its submissions were in accord with the Supreme Court of Canada's view, as noted in the Bell Canada decision, that the Guidelines can properly influence the outcome of future cases where no-one, including the Commission, can anticipate whose particular interests the Guidelines will favour. Canada Post argued that the Guidelines could improperly influence the outcome of a case where their particular impact is already known and their application is controlled by the Commission's timing of referring that case to a tribunal. Hence, the Guideline-making power cannot be interpreted to permit the Commission to apply a Guideline to a complaint it is already investigating when the Guideline is issued. [128] Thus, Canada Post argued that the Supreme Court's reasoning in the Bell Canada case supports Canada Post's position that the 1986 Guidelines should not apply to the Complaint because to do so would permit the Commission to influence, improperly, its outcome. The Commission was already investigating the Complaint when the 1986 Guidelines were introduced. By virtue of its decision to issue the 1986 Guidelines before referring the Complaint to the Tribunal, the Commission, in Canada Post's submission, controlled what the Tribunal was bound to apply to the Complaint, knowing its likely impact on the outcome of the Complaint. [129] Interestingly, while Canada Post, in its submissions (p. 14-15), stated that the Supreme Court decision "...strongly supports Canada Post's position that the 1986 Guidelines should not apply to this Complaint at all because to do so would permit the Commission to improperly influence its outcome", Canada Post did not cite any examples of such improper influence or even any hints of such improper influence by the Commission. It is presented simply as a possible threat of impropriety, a suggestion of a creation of possible bias or impartiality, without substantiation. [130] While agreeing with Canada Post that there is a presumption against retroactive application of legislation, and a legal restriction with respect to subordinate legislation, the Commission has argued, in line with Professor Sullivan's thesis, that the Complaint before this Tribunal deals with on-going facts. These facts relate to an allegation of on-going sexual discrimination in wages, as described in section 11 of the Act. [131] The Commission has maintained that the application of legislation, including subordinate legislation, to on-going facts is not retroactive because there is no attempt to alter past law or the rights of persons as of an earlier date. The Commission's position is that legislation or regulations that apply to on-going facts have immediate, not retroactive, effect. [132] With respect to Canada Post's point that its vested rights would be infringed if the 1986 Guidelines were applicable, the Commission dismissed this concern in the absence of any ambiguity in interpreting the statute and the Guidelines. The Commission was also of the view that Canada Post failed to demonstrate that the 1986 Guidelines removed any defences previously recognized by the 1978 Guidelines on which Canada Post might have wished to rely, at least with respect to the critical `reasonable factors'. [133] The Complaint before this Tribunal involves an allegation of sexual discrimination in wages, as described in section 11 of the Act. That allegation is one of systemic discrimination. Section 11 of the Act was drafted using, as its primary basis, the International Labour Organization's 1951 Convention 100 (ratified by Canada in 1972) as well as recommendations from the Report of the Royal Commission on the Status of Women.55 These historical documents addressed the issue of systemic discrimination against women in the area of wages, with the most basic recommendation being that all wages be based on the value of the work being performed. [134] Systemic discrimination has been defined by the Supreme Court of Canada [C.N.R. v. Canada (Human Rights Commission), [1987] 1 S.C.R. 1114 at 1139] as follows: ...systemic discrimination in an employment context is discrimination that results from the simple operation of established procedures of recruitment, hiring and promotion, none of which is necessarily designed to promote discrimination. The discrimination is then reinforced by the very exclusion of the disadvantaged group because the exclusion fosters the belief, both within and outside the group, that the exclusion is the result of "natural" forces, for example, that women "just can't do the job" (see the Abella Report, pp. 9-10). To combat systemic discrimination, it is essential to create a climate in which both negative practices and negative attitudes can be challenged and discouraged. [135] The discrimination being alleged in the Complaint is, therefore, ongoing, by definition. [136] In addressing the issue of retroactivity, both Canada Post and the Commission have made reference to the Gustavson Drilling case and to Professor Sullivan's volume on Driedger on the Construction of Statutes.56 Some of these references have already been identified above, but, given the complexity of the subject, the Tribunal considers it appropriate to examine Professor Sullivan's relevant writings in greater depth. [137] Professor Sullivan states that the terms `retroactive' and `retrospective' are often used interchangeably but the growing trend is to define `retroactive' legislation as legislation that applies to past facts and changes the past legal consequences of completed transactions. `Retrospective' legislation changes the future consequences of completed transactions by imposing new liabilities or obligations.57 The Tribunal accepts use of the term `retroactive' as defined by Professor Sullivan. [138] Professor Sullivan indicates that the 1977 Gustavson Drilling decision confirmed that it is strongly presumed that legislation is not intended to have a retroactive application to facts that occurred before the legislation came into force. To apply this principle, Professor Sullivan writes that it is necessary to identify which facts are relevant to the legislation and to situate them in time relative to its effective date. [139] The relevant facts are the `fact-situation' of the case concerned, which, with respect to the case before this Tribunal, includes alleged systemic wage discrimination. [140] Situating the facts in time involves, in Professor Sullivan's model, determining whether the fact-situation is ephemeral, continuing or successive. She defines these choices as follows: Ephemeral fact situations consist of facts that begin and end within a short period of time, such as actions or events. The facts are complete and become part of the past as soon as the action or event ends; the legal consequences attaching to the fact-situation are fixed as of that moment. (...) Continuing fact situations consist of one or more facts that endure over a period of time...A continuing fact can be any state of affairs or status or relationship that is capable of persisting over time ... Where no limit in time is stipulated, a continuing fact situation continues and does not become part of the past until the fact-situation itself - the state of affairs or condition or relationship - comes to an end. (...) Successive fact situations consist of facts, whether ephemeral or continuing, that occur at separate times ... A fact-pattern, defined in terms of successive facts, is not complete and does not become part of the past until the final fact in the series, whether ephemeral or continuing, comes to an end.58 [141] Professor Sullivan goes on to say that once the fact-situation has been identified - and, in this case, the Tribunal considers it to be a continuing fact-situation - the test set out in the legislation must be applied to the relevant facts. An application is not retroactive unless all the relevant facts were past when the provision came into force. With respect to a state of affairs such as the on-going systemic wage discrimination alleged in this Complaint, the provision (in this case, the 1986 Guidelines) is not retroactive unless the state of affairs has ended before commencement of the provision. Clearly, the position of the Commission, supported by the Alliance, is that the alleged systemic discrimination state of affairs did not end when the 1986 Guidelines became effective. [142] The application of legislation, whether statutory or subordinate, to on-going facts or facts-in-progress, is not, according to Professor Sullivan, retroactive because "...to use the language of Dickson, J. in the Gustavson Drilling case, there is no attempt to reach into the past and alter the law or the rights of persons as of an earlier date".59 [143] Professor Sullivan continues: Legislation that applies to on-going facts is said to have `immediate effect'. Its application is both immediate and general: `immediate' in the sense that the new rule operates from the moment of commencement, displacing whatever rule was formerly applicable to the relevant facts, and `general' in the sense that the new rule applies to all relevant facts, on-going as well as new.60 [144] Although Canada Post submitted that to use the 1986 Guidelines to interpret section 11 of the Act for a complaint that originated in 1983 would amount to applying those Guidelines retroactively, the Tribunal finds that one is not dealing with the retroactivity of the 1986 Guidelines in this case. One is dealing with what Professor Sullivan has called a continuing "state of affairs" fact-situation. When the 1986 Guidelines came into effect they applied immediately and generally to all the on-going facts that started in the past and continued to the then-present and to the future. This included all facts involved in the alleged systemic wage discrimination. [145] Therefore, the Tribunal concludes that the 1986 Guidelines are not being applied retroactively in this case, but are addressing an on-going, and continuing, fact-situation without being unfair or prejudicial to Canada Post. [146] It is appropriate to address the Commission argument, made after the Supreme Court of Canada's decision of June 2003 in the Bell Canada case. The Commission submitted that the relevant point in time for determining what law applies to a complaint is the date of its referral to a tribunal. This point in time was described by the Commission as "the point of crystallization". [147] The Commission stated that, once referral has been effected, new guidelines issued by the Commission during the life of a tribunal would not apply to the referred complaint. To do otherwise would constitute retroactive application of those new guidelines which is clearly unacceptable. [148] The Commission further argued that the Supreme Court of Canada, in paragraph 47 of its Bell Canada decision "...appears to accept the position taken by the Commission before the Court that the referral date is the relevant cut-off point".61 That paragraph acknowledges that the Guidelines, like all subordinate legislation, are subject to the presumption against retroactivity. The Supreme Court indicated that the presumption "...is a significant bar to attempting to influence a case that is currently being prosecuted before the Tribunal by promulgating a new guideline".62 [149] Canada Post's arguments on this same Supreme Court decision underlined that the Supreme Court, while stating the principle that no guideline can apply retroactively, did not declare that the date of the referral to a tribunal is the point in time for determining what law applies to a complaint. The Court, according to Canada Post's argument, simply cited an example of a hypothetical case being considered before a tribunal and indicated that retroactivity could not apply as it would be improper, in such an example, to allow the Commission to influence the outcome of the case by means of the promulgation of a new guideline. Under such circumstances, the Commission would be a party before the tribunal and also the drafting agency for the new guideline which would be, according to the Act, binding on the tribunal. [150] The Tribunal finds Canada Post's argument to be the more persuasive one. The Tribunal does not consider the Supreme Court's decision in the Bell Canada case to have endorsed the date of a complaint's referral to the Canadian Human Rights Tribunal as the relevant cut-off point for determining what law applies to a complaint. Rather, the Supreme Court has cited but one obvious example to illustrate that the Commission's guideline-making power is constrained and cannot be applied retroactively. Moreover, the example underlines the Supreme Court's comment that a party is always at liberty to question the propriety of the Commission's guideline-making power, based on an argument that the guideline was made in bad faith or for an improper purpose. [151] Canada Post has also argued that neither the Commission nor the Alliance can fairly or legally rely on the 1986 Guidelines in addressing the Complaint because that reliance would interfere with Canada Post's vested right to rely on defences available to it as of the date the Complaint was filed in 1983. [152] Canada Post is arguing that the 1986 Guidelines impose on the Tribunal rules for interpreting section 11 of the Act which differ, in ways important to Canada Post's defences, from the rules that prevailed in the 1978 Guidelines. One of three examples of such differences mentioned by Canada Post was the ability, in the 1978 Guidelines, to include, when evaluating jobs, the value of overtime or shift work premiums. Since the 1986 Guidelines prohibit this inclusion, Canada Post argued that the latest Guidelines have removed a right of defence which was vested for Canada Post as of the date of the filing of the Complaint. This produces, according to Canada Post, an unfair result. [153] As already noted, the Commission, in its submissions on vested rights, referred to the 2001 decision of Marceau, J. in which he stated that "[t]here is no concrete definition of what constitutes a `vested right', primarily because it is difficult to generalize across the cases and as each case must be studied individually...".63 He also indicated that judges are often faced with a policy conundrum in addressing vested rights and may have to rule on the basis of the "greater good".64 [154] To rule on the basis of the "greater good" introduces another dimension to the analysis. For example, are there features of the 1986 Guidelines that better benefit the "greater good" than the features of the 1978 Guidelines? Is this achievable without imposing unfairness on any of the parties? [155] Professor Sullivan states in her examination of vested rights the following: The key to weighing the presumption against interference with vested rights is the degree of unfairness the interference would create in particular cases. Where the curtailment or abolition of a right seems particularly arbitrary or unfair, the courts require cogent evidence that the legislature contemplated and desired this result. Where the interference is less troubling, the presumption is easily rebutted.65 [156] The Tribunal has, therefore, asked itself: Was the promulgation of the 1986 Guidelines unfair to Canada Post, given the 1983 date of the Complaint? Does the promulgation constitute an infringement of Canada Post's vested rights? [157] The Tribunal considers the period of 1983 to 1986 to be a part of the continuum that constitutes the life of this case. These three initial years should not be viewed in isolation but should be seen in the context of the continuing fact-situation that existed at the time the 1986 Guidelines came into force. [158] By 1986, although little had been accomplished amongst the parties in the investigation of the Complaint, all parties had kept one another apprised of work being done affecting the Complaint. For example, work continued by Canada Post and the Alliance in developing System One as a tool for evaluating the positions held by clerical staff at Canada Post. The Commission was informed of this work. [159] Furthermore, Canada Post and the Alliance were actively involved during this period in the Commission's attempts to retrieve data for its job evaluation process. In fact, interviews of sample CR incumbents had commenced just prior to the 1986 Guidelines becoming effective in November of that year. [160] The Tribunal has already established that the 1986 Guidelines are not retroactive and make no attempt to alter past law or the rights of anyone as of an earlier date. Rather, the 1986 Guidelines apply to the on-going fact-situation with immediate effect. [161] The 1986 Guidelines had come into effect on November 18, 1986, long before the Commission referred this Complaint, on March 16, 1992, to the Canadian Human Rights Tribunal for a hearing. The Commission had played a role in the discussions amongst the parties as the Complaint moved through the Investigation Stage. Many of the matters discussed by the parties before 1986 involved issues which later became part of the 1986 Guidelines, such as occupational groups and methods of job evaluation, including assessment of value. [162] There was, therefore, an understanding, by all concerned, of the Complaint as originally drafted. Although the 1986 Guidelines represent a significant change from the 1978 Guidelines, their introduction did little more than codify some of the Commission's procedures with which all parties had been dealing from the date of the Complaint. The wording of the Complaint, itself, exemplifies the historical nature of these procedures, as it speaks of female and male-dominated occupational groups, and the wages paid to employees within these groups. These procedures are not a part of the Act, nor were they a part of the 1978 Guidelines. They are, however, a part of the 1986 Guidelines. [163] Real unfairness or prejudice would arise, as the Supreme Court indicated, if guidelines which were pertinent to a complaint already sent to be heard by a tribunal were promulgated after its referral to that tribunal. Even in complaints under section 11 of the Act, the Commission could, by promulgation of guidelines during the life of a tribunal, influence its outcome. That is not what happened in this case. [164] With respect to Canada Post's example of the 1986 Guidelines' exclusion of overtime or shift work premiums from the value of work being an infringement of its vested rights, the Tribunal prefers the Commission's submission. The Commission indicated in submissions that this is an example of a neutral policy "trade-off". The complainant does not include the overtime or shift work premium in the value of wages, while the employer does not include overtime or shift work in its job point value. It is not an example of the removal of a Canada Post right of defence. [165] In terms of the "greater good" argument, the Tribunal accepts that the Commission's promulgation of the 1986 Guidelines was an attempt to bring much needed clarification to the interpretation of section 11 of the Act, without injustice to any party. The creation of the Guidelines was completed after many years of consultation with companies and organizations, including Canada Post itself. The Tribunal accepts that the Commission's decision to create new guidelines in 1986 was for the benefit of the "greater good". [166] Therefore, the Tribunal fails to understand how the introduction of the 1986 Guidelines after the presentation of the Complaint to the Canadian Human Rights Commission has been unfair or prejudicial to Canada Post, an infringement on its vested rights, or an improper influence upon the outcome of the Complaint before this Tribunal. [167] Accordingly, the Tribunal concludes that the 1986 Guidelines are applicable to the issues to be addressed in the current Complaint. The question of the retroactivity of these Guidelines is not applicable to this Complaint, brought under section 11 of the Act. The facts involved are on-going, or continuing, and, as such, do not give rise to a concern about retroactivity. Additionally, the Tribunal finds that there is no infringement of Canada Post's vested rights because of the applicability of the 1986 Guidelines. (iii) Are subsection 8(2) and sections 11-15 of the 1986 Guidelines Valid? a) Submissions of the Parties [168] All parties agreed that the Guidelines are subordinate legislation, created under the power given to the Canadian Human Rights Commission by section 27 of the Act, and as such, must not be in conflict with the Act. There is, however, a presumption that subordinate legislation is valid. When a party challenges subordinate legislation, the onus is on that party to convince the decision-maker that the subordinate legislation being challenged is invalid. The question to be answered by the decision-maker is a question of law. [169] In this Complaint, Canada Post has challenged subsection 8(2) and sections 11 to 15 inclusive, of the 1986 Guidelines, based on its argument that a simple reading of the Act, giving straight-forward meaning to the words of the Act, and section 11 in particular, creates an inconsistency with the words and meaning in the challenged sections of the 1986 Guidelines. It is this lack of cohesion between the words and meaning of section 11 of the Act, as interpreted by Canada Post, and the words and meaning of those sections of the 1986 Guidelines, the subordinate legislation, which creates, according to Canada Post, a situation where the Commission has not exercised its power under section 27 of the Act in a reasonable manner, and thus caused those sections of the 1986 Guidelines to be invalid. [170] The parties' submissions dealt with what should be the acceptable approach to determine validity of guidelines. Once argument was heard concerning the test for validity, further submissions were made by each party concerning its position on the issue of the validity of sections of the Guidelines impugned by Canada Post. [171] Canada Post and the Commission both referred to the Oldman River case66, a decision of the Supreme Court of Canada which addressed statute interpretation, specifically in the context of a situation where there were two federal statutes and a subordinate Guidelines Order involved. [172] Quoting from the work of Professor Ruth Sullivan, Canada Post urged the Tribunal to separate the enabling legislation and its subordinate regulations (or in this case, the Guidelines) before determining the validity of the latter. It noted Sullivan's words, as follows: Statutes are paramount over regulations... The presumption of coherence applies to regulations as well as to statutes. It is presumed that regulatory provisions are meant to work together, not only with their own enabling legislation but with other Acts and other regulations as well.67 [173] Canada Post submitted that, when testing the validity of challenged subordinate legislation, the Guidelines, the Tribunal must first construe the enabling legislation, and then assess the validity of the impugned sections of the Guidelines. Canada Post considered that this methodology is different from that espoused by the Commission's arguments. [174] The Commission's argument concerning statute interpretation in the face of a challenge to subordinate legislation also drew on the Oldman River case. It cited the following to underline its submissions concerning the test to be made for the validity of the impugned sections of the Guidelines: The basic principles of law are not in doubt. Just as subordinate legislation cannot conflict with its parent legislation ... so too it cannot conflict with other Acts of Parliament, ... unless a statute so authorizes... Ordinarily, then, an Act of Parliament must prevail over inconsistent or conflicting subordinate legislation. However, as a matter of construction a court will, where possible, prefer an interpretation that permits reconciliation of the two. `Inconsistency' in this context refers to a situation where two legislative enactments cannot stand together.68 [175] The Commission argued that, in line with the Oldman River case and with the writings of Professor Sullivan, the presumption of coherence presumes that regulatory provisions are meant to work together with their parent legislation as well as with other Acts and regulations. [176] The Commission submission pointed to what it perceived to be Canada Post's argument that this presumption of cohesion disappears once there has been a challenge to the validity of subordinate legislation. The Commission argued that were this to be the case, there would no longer be a recognition of the importance of seeking reconciliation of differences as was underlined in the Oldman River case. [177] The Commission argued that it is immaterial whether one takes its approach of reading the enabling legislation and the subordinate legislation together, or Canada Post's approach of first construing the enabling legislation and then addressing the subordinate legislation. The important part of the exercise is to test whether there is a consistency and a cohesion between the two levels of legislation. [178] To begin such an interpretive exercise, section 11 and subsections 27(2), (3) and (4) of the Act and the challenged subsection 8(2) and sections 11, 12, 13, 14, and 15 of the 1986 Guidelines, read as follows: Canadian Human Rights Act Equal wages 11(1) It is a discriminatory practice for an employer to establish or maintain differences in wages between male and female employees employed in the same establishment who are performing work of equal value. Assessment of value of work 11(2) In assessing the value of work performed by employees employed in the same establishment, the criterion to be applied is the composite of the skill, effort and responsibility required in the performance of the work and the conditions under which the work is performed. Separate establishments 11(3) Separate establishments established or maintained by an employer solely or principally for the purpose of establishing or maintaining differences in wages between male and female employees shall be deemed for the purposes of this section to be the same establishment. Different wages based on prescribed reasonable factors 11(4) Notwithstanding subsection (1), it is not a discriminatory practice to pay to male and female employees different wages if the difference is based on a factor prescribed by guidelines, issued by the Canadian Human Rights Commission pursuant to subsection 27(2), to be a reasonable factor that justifies the difference. Idem 11(5) For greater certainty, sex does not constitute a reasonable factor justifying a difference in wages. No reduction of wages 11(6) An employer shall not reduce wages in order to eliminate a discriminatory practice described in this section. Definition of "wages" 11(7) For the purposes of this section, "wages" means any form of remuneration payable for work performed by an individual and includes (a) salaries, commissions, vacation pay, dismissal wages and bonuses; (b) reasonable value for board, rent, housing and lodging; (c) payments in kind; (d) employer contributions to pension funds or plans, long-term disability plans and all forms of health insurance plans; and (e) any other advantage received directly or indirectly from the individual's employer. Powers, duties and functions [of the Commission] Guidelines 27(2) The Commission may, on application or on its own initiative, by order, issue a guideline setting out the extent to which and the manner in which, in the opinion of the Commission, any provision of this Act applies in a class of cases described in the guideline. Guideline binding 27(3) A guideline issued under subsection (2) is, until it is revoked or modified, binding on the Commission and any member or panel assigned under subsection 49(2) with respect to the resolution of a complaint under Part III regarding a case falling within the description contained in the guideline. Publication 27(4) Each guideline issued under subsection (2) shall be published in Part II of the Canada Gazette. Equal Wages Guidelines, 1986 Assessment of Value - Working Conditions 8(2) For the purposes of subsection 11(2) of the Act, the requirement to work overtime or to work shifts is not to be considered in assessing working conditions where a wage, in excess of the basic wage, is paid for that overtime or shift work. Complaints by Individuals 11(1) Where a complaint alleging a difference in wages is filed by or on behalf of an individual who is a member of an identifiable occupational group, the composition of the group according to sex is a factor in determining whether the practice complained of is discriminatory on the ground of sex. (2) In the case of a complaint by an individual, where at least two other employees of the establishment perform work of equal value, the weighted average wage paid to those employees shall be used to calculate the adjustment to the complainant's wages. Complaints by Groups 12 Where a complaint alleging different wages is filed by or on behalf of an identifiable occupational group, the group must be predominantly of one sex and the group to which the comparison is made must be predominantly of the other sex. 13 For the purposes of section 12, an occupational group is composed predominantly of one sex where the number of members of that sex constituted, for the year immediately preceding the day on which the complaint is filed, at least (a) 70 per cent of the occupational group, if the group has less than 100 members; (b) 60 per cent of the occupational group, if the group has from 100 to 500 members; and (c) 55 per cent of the occupational group, if the group has more than 500 members. 14 Where a comparison is made between the occupational group that filed a complaint alleging a difference in wages and other occupational groups, those other groups are deemed to be one group. 15(1) Where a complaint alleging a difference in wages between an occupational group and any other occupational group is filed and a direct comparison of the value of the work performed and the wages received by employees of the occupational group cannot be made, for the purposes of section 11 of the Act, the work performed and the wages received by the employees of each occupational group may be compared indirectly. 15(2) For the purposes of comparing wages received by employees of the occupational groups referred to in subsection (1), the wage curve of the other occupational group referred to in that subsection shall be used to establish the difference in wages, if any, between the employees of the occupational group on behalf of which the complaint is made and the other occupational group. [179] Canada Post submitted that its interpretation of section 11 of the Act is purposive, broad and liberal while, at the same time, follows the modern approach to statute interpretation. The latter demands that the decision-maker read the words of the statute "in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, and the intention of Parliament".69 [180] In subsection 11(1), the words which have elicited a marked difference of interpretation amongst the parties are "male and female employees". Canada Post submitted that this phrase, seminal to the whole of section 11, means what it says. It is talking about discrimination between employees who are either men or women, and not between groups of people made up of men and of women. The discrimination is based on sex, and manifests itself in a difference in wages paid to the men and women involved. [181] Canada Post submitted that the focus of concern in section 11 of the Act is sex discrimination between individual men and women as seen in the difference in wages paid by employers to those men and those women for the work they do. If this interpretation is accepted, sections 11 through 15 of the Guidelines must be invalid because they do not relate to section 11 of the Act in any way. Subsection 11(1), so interpreted, does not speak of occupational groups and of the need to determine the gender percentage of those groups in order to classify them as either "male-dominated" or "female-dominated". Therefore, the concerns addressed by sections 11 through 15 of the Guidelines would not be applicable at all. Those sections would represent the promulgation of guidelines by the Commission which are not consistent with the underlying statute. Therefore, they would be invalid. [182] Canada Post's ordinary meaning interpretation of subsection 11(1) might read as follows, according to its submissions: It's a discriminatory practice ... something that is prohibited, for an employer to establish and maintain, that is, to exercise some creation or some power to create or continue, differences, that is higher and lower wages ... between two people, two classes of people, male employees and female employees...between employees who are men and employees who are women...employed in the same establishment ... [which] means subject to a common wage and personnel policy ... There is only a difference of wages that's prohibited if the employees, the male and female employees in the same establishment, are performing work, their work, their individual work of equal value...70 [183] Canada Post argued that a complaint, based upon section 11 so interpreted, could be made by any individual, man or woman, or by any group of men or women, without the constraint of artificial barriers against persons who are employed in occupational groups whose work is classified as gender neutral or "male". The complaint mechanism would become more accessible to all employees. Therefore, the general purpose of the Act, to eliminate discrimination based upon, inter alia, sex, would be advanced. The restriction, argued Canada Post, which is created by the Commission's interpretation of section 11, especially in its promulgation of sections 11 through 15 of the Guidelines, would be removed. [184] Of more import, however, according to Canada Post, is the Commission's apparent transforming of the plain language of subsection 11(1) of the Act into a completely different approach to the concept of "equal pay for work of equal value" through the use of the Guidelines. Instead of dealing with discrimination based on gender in the arena of wages, the Commission, according to Canada Post, has interpreted section 11 to be focused on discrimination based on the undervaluation of women's work in segregated occupational groups. In other words, the Commission has decided that section 11 of the Act addresses the concept of "pay equity". Once the Commission decided to deal with section 11 in that manner, it had to define the occupational groups. [185] The basis of Canada Post's submissions concerning the interpretation of section 11 of the Act is that the section is not about "pay equity". The "work of equal value" which must be compared in order to prove the discriminatory practice being denounced by section 11 is the work of each of the men and each of the women employees involved in the complaint. The section does not address the work of occupational groups made up of men and women who are doing "women's work" or "men's work". [186] Canada Post submitted that its interpretation of section 11 is a natural progression, historically, from previous legislation which addressed discrimination against working women. The first such legislation, early in the twentieth century, was a minimum wage for women employees. That was followed, decades later, by legislation denouncing the practice of paying women lower wages for work which was found to be either the same, or substantially similar, to work being done by men. Although this natural progression could lead, eventually, to the concept of "pay equity", Canada Post's argument is that section 11 cannot be interpreted as a movement on the continuum to that point. [187] Canada Post's submission was that section 11 of the Act cannot be characterized as addressing the concept of "pay equity". Canada Post emphasized, in its final argument, that provincial legislation concerning "pay equity" is specific in nature. There is usually a separate provincial Act which is entitled a "Pay Equity Act". The concept is not incorporated into provincial human rights legislation because, generally, it is not complaint-driven but rather is a mandated concept carrying specific methodologies and rules for its implementation. [188] Canada Post argued that the process of dealing with "pay equity" derives its ideas from academic studies and literature which has evolved concerning this abstract concept. The methodology is based upon job classes which are predominantly female or predominantly male because the purpose of "pay equity" studies, and eventually, "pay equity" legislation, is to address the inequities which have evolved in employment due to occupational segregation and the undervaluing of predominantly female occupations. Canada Post's argument continued, however, to stress that the Canadian Human Rights Act is concerned with the difference in wages between men and women based on gender discrimination not the broad concept of "pay equity". The Act is, according to Canada Post, concerned about protecting individuals from disadvantage or discrimination resulting from fundamental individual characteristics. [189] Canada Post's submission was that the Act has been promulgated for the benefit of individuals in Canadian society. The purpose of the Act, as set out in section 2, underlines that this human rights legislation was created so that "...all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have...". The grounds for discrimination which are listed in the Act are characteristics of individuals. Section 3 of the Act specifically indicates that the list of grounds is "[f]or all purposes of this Act". As one reads further in the Act, each section follows the next to speak of "individuals" or "employees". [190] This commonality is broken by section 11 of the Act which does not speak of an individual employee or a group of employees, but addresses discrimination involving "male and female employees". It is this change in language which alerts us, argued Canada Post, to the fact that this particular section addresses systemic discrimination, for it indicates Parliament's concern about whether there is systemic discrimination, whether there is a pattern within the overall establishment of setting differences in wages between men and women performing work of equal value. [191] Canada Post underlined in its submissions that it accepts that section 11 addresses systemic discrimination, but argued that this acceptance does not mean that it accepts that complaints of systemic discrimination can only be brought by groups. Indeed, it submitted that individual complaints can be made based on allegations of systemic discrimination [192] As counsel for Canada Post submitted: ...if it's systemic discrimination, and if it's men and women employed in the establishment, you take the wages of the women employed in the establishment and you take the wages of the men employed in the establishment, and you compare the work of men and women performing work of equal value and their wages. If there is a pattern of wage differences, then there is a violation.71 [193] This comparison cannot, according to Canada Post, be equated with the evaluation process which is either mandated or is commonly followed when one is dealing with "pay equity" issues. That process most often involves the comparison of the value of work of groups of persons who are doing either "women's work" or "men's work". [194] The Commission's submission was that there is binding precedent from Evans, J., then of the Federal Court (Trial Division), in the Treasury Board case72, that the Commission's interpretation that section 11 does address the issue of "pay equity", as evidenced by the promulgation of the 1986 Guidelines, is correct. In answer, Canada Post argued that the acceptance by Evans, J. of the Commission's interpretation (and the use of the 1986 Guidelines) was based on the fact that all parties involved in that case accepted that interpretation. As there was no challenge to the Commission's interpretation of section 11, the presumption that the Guidelines were valid was never challenged. Canada Post noted that any comment made by Evans, J. must be accepted by this Tribunal as merely that - comment which can be useful to the Tribunal as it crafts its decision concerning the issue, but not binding on the Tribunal as precedent. [195] Additionally, Evans, J. made extensive comment on the viability of Guideline 14, which addresses occupational groups, in the context of section 11 of the Act. The interpretation of that particular guideline was the main issue to be decided by the tribunal which heard the Treasury Board case and by the Federal Court which reviewed its decision. The comments of Hugessen, J. in the Department of National Defence case73 were alluded to by Evans, J. and, therefore, should be, according to the Commission arguments, of import to this Tribunal's interpretation of section 11 of the Act. [196] The Commission submitted that the Supreme Court of Canada, in its June 2003 decision in Bell Canada, found that the Commission has the power, conferred upon it by section 27 of the Act, to create guidelines which are analogous to Regulations. That decision, argued the Commission, has created the presumption that the Guidelines are valid. [197] As is a challenge to promulgated Regulations, a challenge to the validity of the Guidelines is difficult. Courts prefer to accept that the subordinate legislation can be reconciled with its enabling legislation. If it were to accept Canada Post's interpretation, the Commission argued, the Tribunal would have to find that there is an operational conflict between the Act and the Guidelines, and that there is no ability to reconcile the conflict. [198] The Commission argued that Canada Post's choice to begin its "ordinary meaning" argument with the words "male and female employees" avoids the true meaning of section 11. The Commission based its submissions on the historical evolution of the concept of "equal pay for work of equal value", as well as comments made by the Courts. After so doing, it submitted that the Tribunal should accept the Commission's interpretation of section 11 of the Act as Parliament's enunciation of the principle of "pay equity". The Commission further submitted that Parliament addressed the difficulty of dealing with the abstract concept of "pay equity" by giving the Commission the tools to make that principle operational. Those tools include the Commission's ability to promulgate guidelines, pursuant to section 27 of the Act. [199] Therefore, the Commission promulgated its guidelines to accord with the purpose of "pay equity" legislation. The Commission submitted that the purpose of such legislation is to ameliorate the occupational segregation of women and the discriminatory payment of lesser wages to those segregated groups for work which is equal in value to work done by groups mainly composed of men. The main focus of section 11 of the Act, according to the Commission, should be the work which is being done, and its value, not the gender of the incumbents who are doing the work. [200] Based on this broad and liberal interpretation, argued the Commission, sections 12 through 15 of the 1986 Guidelines represent the methodology which must be used to make the principle enunciated in section 11 of the Act a workable theory. Those sections of the Guidelines are absolutely connected to section 11 of the Act, and make the two areas of the legislation work in tandem, to create a cohesive whole which is the basis for the evaluation work which must be completed to establish whether a complaint can be substantiated. [201] The Commission argued that, notwithstanding Canada Post's adamant submissions that its interpretation of section 11 of the Act is broad and purposive, and is actually more liberal in its ability to encompass any complainant(s), the reality and the natural conclusions which the Canada Post interpretation would create are narrow and restrictive. Its interpretation does not address the broad concept of "pay equity" which is what the legislation was intended to address from its beginnings. [202] According to the Commission's submissions, Canada Post's interpretation would restrict the evaluation process to a singular methodology. Only the job-to-job approach could be used. Only an examination of the whole "system" could be made in the evaluation process, even if the complainant were a single individual. Although there was a concession by Canada Post that representative sampling could be done at the evaluation stage, the Commission argued that Canada Post's interpretation of section 11 of the Act would create a cumbersome methodology which would, in fact, be regressive in nature. b) Tribunal's Analysis [203] All parties have quoted from Sullivan's Driedger on the Construction of Statutes, in its many iterations. The Tribunal agrees that this work is seminal when one is dealing with statute interpretation. Of note are the commentaries on what Driedger styled "the modern rule" of interpretation, as follows: Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context, and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.74 There is only one rule in modern interpretation, namely, courts are obliged to determine the meaning of the legislation in its total context, having regard to the purpose of the legislation, the consequences of proposed interpretations, the presumptions and special rules of interpretation, as well as admissible external aids. In other words, the courts must consider and take into account all relevant and admissible indicators of legislative meaning. After taking these into account, the court will then adopt an interpretation that is appropriate. An appropriate interpretation is one that can be justified in terms of (a) its plausibility, that is, its compliance with the legislative text; (b) its efficacy, that is, its promotion of the legislative purpose; and (c) its acceptability, that is, the outcome is reasonable and just.75 [204] Additionally, the Interpretation Act must be considered. It indicates that: Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.76 [205] Based on these interpretive principles, the Tribunal finds that the Commission's submissions concerning the interpretation of section 11 of the Act represent the more appropriate approach to this section. The Tribunal has read the section within the context of the Act. Additionally, it has considered the interpretations of section 11 which have been presented by tribunals and Courts in the past. The Tribunal has before it expert evidence which addressed the historical evolution of the concept of "pay equity". This evidence, combined with comments made by Member of Parliament, the Honourable Ron Basford, during the discussions preceding the promulgation of the Act, reinforces, in the Tribunal's view, the finding that section 11 of the Act is intended to address the issue of "pay equity". [206] The Tribunal accepts that this interpretation is compatible with the purpose of the legislation, its context, and its legislative history. The purpose of the Act is set out in section 2, as follows: The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted. [207] Canada Post's submission that this purpose underlines the Act's scope as legislation which targets discrimination solely against individuals on specific grounds cannot be accepted. It is the Tribunal's view that this is a restrictive interpretation of legislation which is clearly meant to address the broad issue of discrimination against all persons. Acts of Parliament must be interpreted using large and liberal construction which will result in fairness to all. The elimination of groups made up of both male and female persons from the protection of the Act would result in a narrowing of the purpose of the Act. The Tribunal rejects this interpretation, and accepts that section 11 of the Act, in addressing discrimination in the area of "pay equity", conforms with the general purpose of the Act. [208] One of Canada Post's submissions was based upon what it characterized as an historical continuum of legislation. This continuum included other work-related legislation which has addressed the very real problem of a difference in wages paid to female and male workers, such as the Canada Labour Code. As noted already, successive governments have attempted, from the turn of the nineteenth/twentieth centuries, to deal with the problem of differences in wages paid to male and female workers. From Canada Post's perspective, the passage of section 11 in the Act represents stage 4 in a continuum which began with minimum wage legislation, and moved on to "equal pay for the same work" done by males and females, slightly modified to become "equal pay for substantially similar work" and, according to their argument, would naturally evolve to become "equal pay for work of equal value" done by male and female workers. Eventually, in Canada Post's submission, "pay equity", a concept further along on the continuum, and somewhat distant from the first four concepts in its methodology and its focus, might become an issue to be addressed as stage 5. Its main argument, however, was that the concept of "pay equity" is not currently a part of the Act. [209] Canada Post conceded that the focus on occupational groups, deemed predominantly female or predominantly male, which can be compared using various methodologies involving such statistical means as regression analysis, is a legitimate characteristic of a "pay equity" study. Its submission was, however, that section 11 of the Act is not about "pay equity". [210] "Pay equity" legislation is, according to Canada Post, something entirely dissimilar from a denunciation of a difference in wages between men and women for work of equal value. While Canada Post agrees that "pay equity" has its focus on the problem of the occupational segregation of women, and the related problem of the undervaluation of women's work, it believes this interpretation represents a leap in conceptual thinking from what it argues are the clear words of section 11. As such, Canada Post implies that "pay equity" cannot be what Parliament meant to address when it created section 11 of the Act. [211] The Tribunal rejects this argument that "pay equity", as a concept, is beyond the scope of the Act. The concept has already been accepted as the interpretive basis for section 11 of the Act. In one of the first cases to discuss section 11, Public Service Alliance of Canada v. Canada (Department of National Defence), the Federal Court of Appeal noted that: [t]he case concerns pay equity...the appellant, as bargaining agent for the employees concerned, alleged that the respondent employer was not paying certain female employees wages equal to those paid to certain male employees performing work of equal value ... in contravention of Sections 7 and 11 of the Canadian Human Rights Act.77 [212] Thus, from the very introduction to the judgement in that case, Hugessen, J. characterized section 11 of the Act as a section which had been created, specifically, to address the problem of "pay equity". [213] He quoted at length from Dickson, C.J. who "[i]n the seminal case of Action Travail des Femmes v. Canadian National Railway Co." spoke for the Supreme Court of Canada.78 In that case, Dickson, C.J. quoted the Abella Report, to conclude that: ...systemic discrimination in an employment context is discrimination that results from the simple operation of established procedures of recruitment, hiring and promotion, none of which is necessarily designed to promote discrimination. The discrimination is then reinforced by the very exclusion of the disadvantaged group because the exclusion fosters the belief, both within and outside the group, that the exclusion is the result of `natural' forces, for example, that women `just can't do the job' ... It is compounded by the attitudes of managers and co-workers who accept stereotyped visions of the skills and `proper role' of the affected group, visions which lead to the firmly held conviction that members of that group are incapable of doing a particular job, even when that conclusion is objectively false.79 (emphasis added) [214] Hugessen, J. then quoted from the Human Rights Tribunal decision in Public Service Alliance of Canada v. Treasury Board which described systemic discrimination as [emphasizing] the most subtle forms of discrimination ... [and recognizing] that long-standing social and cultural mores carry within them value assumptions that contribute to discrimination in ways that are substantially or entirely hidden and unconscious. Thus, the historical experience which has tended to undervalue the work of women may be perpetuated through assumptions that certain types of work historically performed by women are inherently less valuable than certain types of work historically performed by men.80 [215] Clearly, the language of the Treasury Board tribunal is the language of "pay equity". [216] From this position, Hugessen, J. indicated at paragraph 15 that "[I]t is arguable, indeed, that the type of discrimination which pay equity is designed to counteract is always systemic". He went on to quote from Nan Weiner and Morley Gunderson, Pay Equity Issues: Options and Experiences (Toronto: Butterworths, 1990) as follows ...pay equity is designed to address a kind of systemic discrimination. Systemic discrimination is found in employment systems. It is the unintended byproduct of seemingly neutral policies and practices. However, these policies and practices may well result in an adverse or disparate impact on one group vis-a-vis another (e.g., on women versus men) ... Pay equity requires changes to pay systems to ensure that women's jobs are not undervalued. (emphasis added) [217] Again, Hugessen, J. underlined his decision that section 11 of the Act is dealing with the concept of "pay equity". He clearly indicated, by quoting from Weiner and Gunderson, that this concept deals with women's jobs which, historically, have been undervalued and must be addressed to change that systemic discrimination. It is the jobs which are of primary importance, not the gender of the incumbents. [218] This point, that the basis for equal value legislation in Canada was the perceived need to address occupational segregation and the undervaluing of women's work, was emphasized to the Tribunal in this Complaint by Professor Pat Armstrong who was accepted as an expert in women's work, women's wages, and the sociological aspects of equal pay legislation. She stressed that, historically in Canada, there has been a segregation of jobs into female and male dominated areas. [219] Dr. Armstrong noted that one of the federal government's responses to the Royal Commission on the Status of Women (1970) was the promulgation of the Canadian Human Rights Act, 1978, including section 11 of the Act to address systemic discrimination in wages, due to job segregation. This historical background, therefore, must be taken into consideration when interpreting section 11 of the Act. The purpose of the section must include the need to address the undervaluation of women's work, as seen in the segregation of that work into occupational groups dominated by women. [220] Section 11 of the Act, she indicated, is about "pay equity" and, as such, must deal with male and female-dominated job classes in order to address the occupational segregation which that concept targets. In addition to addressing jobs and gender, "pay equity" must discuss these issues through the prism of occupational segregation. [221] This expert evidence echoes the statement of the Honourable Ron Basford, Minister of Justice during Parliamentary debates in 1977 which preceded passage of the Act. As noted in paragraphs [53] and [54] of this Decision, the Honourable Ron Basford anticipated problems with the concept of equal pay for work of equal value as presented in section 11 of the Act. He noted, however, that the government's approach was to legislate the principle, and give to the Commission the task of solving any problems involved in the implementation of that principle. He went on to indicate that the underlying problem was occupational segregation of women, and their historical lower wages, caused by an undervaluation of women's work. [222] Given this background, as well as expert evidence, the Tribunal accepts that section 11 of the Act addresses the concept of "pay equity" which translates into "equal pay for work of equal value" between male and female workers. [223] The principle of "pay equity" between men's work and women's work which has equal value demands a methodology which has evolved as the concept has evolved. The methodology to be used to address the concept is not part of section 11. As the Supreme Court underlined in its June 2003 decision, the task of fleshing out the operation of section 11 of the Act has been given to the Commission. The promulgation of the 1986 Guidelines is the direct result of the task mandated to that body. [224] Each section of the Guidelines which Canada Post has challenged, based on its interpretation of the Act, addresses the concept of "pay equity". Indeed, Canada Post conceded in its submissions concerning the interpretation of section 11 of the Act that the Guidelines would be coherent and logical if one were dealing with "pay equity" in section 11. Their position was that section 11 does not make the conceptual leap to "pay equity" but rather must be interpreted using a straight-forward "simple meaning" approach. [225] The Tribunal finds that "pay equity" is the concept which section 11 was created to address. The words of the text allow for the plausibility of this interpretation, as commentators have used the terms "equal pay for work of equal value", "comparable worth", and "pay equity" almost interchangeably. This interpretation of section 11 is efficacious, as it promotes the legislative purpose as enunciated by the Minister of Justice immediately prior to the promulgation of the Act, as well as the intended purpose of the Act, section 2, read in a broad and liberal manner. Given the finding that this interpretation is plausible and efficacious, it is accepted as a reasonable and just interpretation which addresses the purpose of the Act both specifically in the section itself, and within the context of the whole philosophy of the Act. [226] Accordingly, the Tribunal concludes that "pay equity" has been accepted as the interpretative basis for section 11 of the Act, which addresses the undervaluation of work performed by women in occupational groups dominated by women. Examination of male and female job classes, therefore, becomes an important aspect of any "pay equity" study and the Commission's 1986 Guidelines, particularly those sections challenged by Canada Post, provide assistance in making that possible. [227] The test to be applied by the Tribunal in determining the validity of the particular sections of the Guidelines impugned by Canada Post is whether or not they are consistent with the meaning of section 11 of the Act. Canada Post has argued that they are inconsistent with section 11. [228] The Tribunal reiterates that a proper interpretation of section 11 recognizes that the section was created to address the concept of "pay equity", as described above. The Commission was entrusted, pursuant to the Act, to implement the concept and was required to make it operational by means of promulgating certain guidelines. [229] The Tribunal, therefore, concludes that the impugned sections 11 through 15 of the 1986 Guidelines, in providing guidance to interpret the "pay equity"-based section 11 of the Act, are vital to that interpretation. They also provide a cohesion and a wholeness to the legislation and are consistent with the meaning of section 11 of the Act and are, accordingly, valid and operable. [230] Additionally, subsection 8(2) of the 1986 Guidelines addresses specifically the methodology to be used when dealing with a particular aspect of the working conditions factor set forth in subsection 11(2) of the Act. As such, it, too, is necessary to the fleshing out of the principles of the Act, and is consistent with the meaning of section 11. [231] In reaching these conclusions, the Tribunal has addressed the submissions of both Canada Post and the Commission concerning how best to test for the validity of the subordinate legislation. In effect, the Tribunal has endorsed the approach that one first interprets the enabling legislation, and then, based on that interpretation, determines whether the impugned subordinate legislation is consistent with its enabling statute. [232] Finally, the Tribunal considers it relevant to refer to Mr. Justice Evans' decision in the Treasury Board case, in which he indicated the following concerning the validity of an impugned guideline: In view of the breadth of the statutory language of subsection 27(2), and of the attributes of the body to which the discretion has been conferred, a provision in any guidelines issues will only be held to be invalid if it is clearly incompatible with the terms of the grant of statutory power, when construed in light of the purposes of the Act...81 [233] Using the language of Mr. Justice Evans, the Tribunal finds that subsection 8(2) and sections 11 through 15 of the 1986 Guidelines, challenged by Canada Post, are not incompatible with their enabling legislation when construed in light of the purposes of the Act. Indeed, the impugned Guidelines are necessary to the smooth operation of the Act and are found to be valid. C. Proof by Presumption [234] The question to be addressed is whether or not the proof by presumption referred to by Evans, J. in the Treasury Board decision, is a rebuttable presumption. All parties in this Complaint have agreed that a presumption, by its very nature of being a presumption, can be rebutted. The real question is what constitutes an acceptable rebuttal under the circumstances of this Complaint? Can this presumption, for example, be rebutted by "reasonable factors" other than those identified in the Guidelines? [235] Evans, J. noted that wage differences between men and women performing work of equal value that are attributable to prescribed "reasonable factors" other than sex, are exempt from the reach of section 11 of the Act. He stated that: Accordingly, once a complainant has established a difference in the wages paid to male and female employees performing work of equal value, a breach of section 11 is thereby established, subject only to the employer's demonstrating that the difference is attributable to one of the `reasonable factors' prescribed in Section 16 of the Guidelines.82 [236] Evans, J. concluded, at paragraph 152, that: Subsection 11(1) can thus be seen to have tackled the problem of proof by enacting a presumption that, when men and women are paid different wages for work of equal value that difference is based on sex, unless it can be attributed to a factor identified by the Commission in a guideline as constituting a reasonable justification for it. [237] In addition, Evans, J. stated that: ...the nature of systemic discrimination often makes it difficult to prove that the disadvantaged position in the workplace of many members of particular groups is based on the attributes associated with the groups to which they belong. This is because, as Dickson, C.J. observed ... systemic discrimination `results from the simple operation of established procedures of recruitment, hiring and promotion, none of which is necessarily designed to promote discrimination'. Accordingly, an employer's wage policies and practices may be based on such deep-rooted social norms and assumptions about the value of the work performed by women that it would be extremely difficult to establish in a forensic setting that, if women were paid less than men performing work of equal value, that difference was based on sex.83 [238] The Commission and the Alliance argued in their submissions that the only way to rebut the aforementioned proof by presumption is to rely on a "reasonable factor" identified in the Guidelines. [239] Canada Post argued that, while relying on a "reasonable factor" in the Guidelines is certainly one way to rebut the presumption, that option is not the only one. [240] Canada Post elaborated that it would be inconsistent with the purpose of the Act to allow only the Commission to displace the presumption of subsection 11(1) by means of its specified "reasonable factors". It argued that the purpose of the Act is to address discrimination on various grounds and section 11 does not include all of the grounds. It concerns discrimination based only on sex. [241] Accordingly, Canada Post added, the respondent or employer should be able to lead evidence to show that the reason for a wage difference, while not being a "reasonable factor", may be due to some cause other than sex. In other words, the list of "reasonable factors" cannot be close-ended but rather must be open-ended, thus providing an additional line of defence to rebut the presumption. [242] While the evidence must be persuasive and the burden of proof lies clearly with the respondent or employer, in Canada Post's view, it should have the opportunity to rebut the presumption by leading such evidence. [243] Essentially, Canada Post argued that if the employer or respondent put evidence before the Tribunal which showed, on a balance of probabilities, that the wage gap was not the result of sex discrimination, then that would constitute a rebuttal of the presumption. It is Canada Post's position that Evans, J. has not foreclosed this argument. [244] The Commission argued that Evans, J. was very clear about what constitutes a rebuttable presumption under subsection 11(1), namely, that only evidence of the presence of "reasonable factors" described in section 16 of the 1986 Guidelines can rebut the presumption that, once a difference in wages between male and female employees performing work of equal value is established, on a balance of probabilities, discrimination based on the ground of sex is also established. [245] Moreover, the Commission cited paragraph 48 of the Supreme Court of Canada decision, dated June 26, 2003, in Bell Canada (Supra note 39). This citation refers to the role of the Commission when it issues guidelines specifically dealing with the "reasonable factors" noted in subsections 11(4) and 27(2) of the Act to justify gender wage differences, as follows: This provision clearly contemplates guidelines adding precision to the Act, without in any way trumping or overriding the Act itself. [246] In the Commission's submission, an open-ended list of "reasonable factors" would not serve the purpose of adding precision to the Act. Nor would it serve the principle of narrowly construing defences in human rights cases generally. [247] Finally, it is helpful to consider the testimony of expert witness for the Commission, Professor Pat Armstrong, concerning systemic discrimination as a concept. The witness was responding to a question from Canada Post's counsel, in cross-examination, relating to the Province of Ontario's human rights legislation: Systemic discrimination is presumed ... systemic discrimination refers to discrimination that arises from a variety of factors, not a single factor, like a single employer behaving inappropriately. Equal pay for work of equal value is based on a certain kind of discrimination. That is what is recognized as systemic discrimination, which is why guilt is not the issue, or, as Morley Gunderson says in his work for the Abella Commission, why it is not a question of even looking for root causes. It is an issue of trying to make pay more equal between male - and female - dominated work. So, it is not a question of discrimination in the general sense, but in the specific sense of systemic discrimination.84 [248] The Tribunal accepts that section 11 of the Act is addressing, primarily, a particular discriminatory practice commonly known as systemic discrimination. This type of discrimination has often arisen, historically, from recruiting and hiring policies and practices that have inherently, but not necessarily intentionally, resulted in female employees being paid less than male employees for work of comparable value. The concept of "equal pay for work of equal value" is, therefore, an attempt to address systemic discrimination by measuring the value of work performed by men and women. [249] The Tribunal notes that Evans, J. has ruled in his decision of October 19, 1999 in the Treasury Board case, that subsection 11(1) effectively enacts a presumption that: ...when men and women are paid different wages for work of equal value that difference is based on sex, unless it can be attributed to a factor identified by the Commission in a guideline as constituting a reasonable justification for it.85 [250] The Tribunal also notes that, while all parties have agreed that a presumption, by definition, is rebuttable, there is not unanimity on what constitutes an acceptable rebuttal under the circumstances of the Complaint. [251] Evans, J. clearly states that the presumption under subsection 11(1) can be rebutted by "reasonable factors" established by the Commission under subsections 11(4) and 27(2) of the Act. On the other hand, Canada Post has argued that rebuttal should not be limited to the "reasonable factors" included in the Guidelines, but should be "open-ended". [252] The Tribunal notes that the aforementioned Supreme Court of Canada decision supports the view that the legislative intent was to add precision to the Act in terms of the guideline-making power which, in the Tribunal's opinion, is compatible with taking a "close-ended" approach to the establishment of "reasonable factors". Moreover, a close-ended list of "reasonable factors" would, in the Tribunal's view, also be compatible with the principle of narrowly construing defences in human rights cases. [253] Accordingly, the Tribunal concludes that the presumption enacted by subsection 11 (1) of the Act, while being a rebuttable presumption, is one that can be rebutted only by "reasonable factors" identified, from time to time, by the Commission, pursuant to subsections 11(4) and 27(2) of the Act. V. PRIMA FACIE CASE A. Background and Elements of a Prima Facie Case for a Complaint brought under Section 11 of the Act [254] Because of the systemic nature of the discrimination alleged in the Complaint before the Tribunal, the Complaint is addressed using the current Act, as amended in 1998. This is evident from the discussion of retroactivity and the validity of the 1986 Guidelines noted in Section IV, B of this Decision. Therefore, the Tribunal must look at each element of section 11, as it currently reads. Each element in section 11 of the Act must be substantiated, on a balance of probabilities, in order to substantiate the Complaint. [255] Section 11 proscribes sexual discrimination in the determination of wages. Subsection 11(1) provides that it is a discriminatory practice for an employer to establish or maintain differences in wages between male and female employees, employed in the same establishment who are performing work of equal value. Subsection 11(2) provides the criterion for assessing the value of the work being compared. The value assigned to the work must be based on the composite of the skill, effort, responsibility and working conditions involved in performing the work. Additionally, subsection 11(4) allows an exemption to employers from a finding of discrimination because of special circumstances which are described as "reasonable factors". [256] As noted in Section IV, C of this Decision, section 11 contains a built-in presumption of discrimination based upon sex, one of the prohibited discriminatory factors noted in the Act, when a difference in wages has been found to exist between male and female employees, employed in the same establishment, performing work of equal value. This presumption is subject to the constraint of "reasonable factors", presented in subsection 11(4) and expanded in definition by the Guidelines. [257] As noted in Section IV, B of this Decision, the 1986 Guidelines are necessary to any discussion of section 11 of the Act, as they illuminate the principle of "pay equity" which is the basis for the section. Therefore, when addressing section 11 in the context of the Complaint before this Tribunal, each of the following elements must be proven, on a balance of probabilities. The elements are taken from section 11 of the Act and from the guidance which is offered concerning the particularizing of the section through guidelines promulgated by the Commission pursuant to its mandate under section 27 of the Act. (1) The complainant occupational group is predominantly of one sex and the comparator occupational group is predominantly of the other sex. In this Complaint, that means the complainant CR's must be predominantly female and the comparator PO's must be predominantly male. (2) The female-dominated occupational group and the male-dominated occupational group being compared are composed of employees who are employed in the same establishment. (3) The value of the work being compared between the two occupational groups has been assessed reliably on the basis of the composite of the skill, effort, and responsibility required in the performance of the work, and the conditions under which the work is performed. The resulting assessment establishes that the work being compared is of equal value. (4) A comparison made of the wages being paid to the employees of the two occupational groups for work of equal value demonstrates that there is a difference in wages between the two, the predominantly female occupational group being paid a lesser wage than the predominantly male occupational group. This wage difference is commonly called a "wage gap". B. Does the Complainant group and the Comparator group represent, respectively, a predominantly female occupational group and a predominantly male occupational group, suitable for comparison of work, under the Act? [258] The history of the groups known as CR's and PO's begins when the Treasury Board classification system was created for federal government departments in the 1960's. That system is still generally maintained in the federal sphere to date. The Post Office Department within the federal government was the precursor to the Crown Corporation, Canada Post. When, by federal statute, the Crown Corporation, Canada Post, was established in 1981, the federal government classification standards and the wage scales attributed to the government classification levels were maintained for those government employees who became employees of Canada Post. This was accomplished pursuant to the transition rules in the statute which created Canada Post as a Crown Corporation. [259] This Complaint was presented to the Commission by the CR occupational group, employed by the newly-created Canada Post. The CR group identified itself in the Complaint as "female-dominated". The group was made up of workers who had been classified as "Clerical and Regulatory" when they were employed in the Post Office Department. This Treasury Board classification was used for all Clerical and Regulatory workers employed throughout the federal government. When the CR's in the Complaint became part of the Crown Corporation, Canada Post, their CR classification was maintained. There was, however, an undertaking between the Alliance, the union representing the CR's and certain other occupational groups, and Canada Post that negotiations to re-evaluate the CR and other positions would eventually take place. This undertaking was the basis for the work which Canada Post management and the Alliance engaged in when they attempted to create the "System One" evaluation scheme. [260] The complainant group chose, as its comparator for the Complaint, the "male-dominated" Postal Operations group, the PO's. The PO's had been, like the CR's, employees of the federal government when the Post Office was a government department and had retained their status as PO's when they became employees of the newly-created Crown Corporation. These employees, represented by the Canadian Union of Postal Workers (CUPW), had originally been members of a unique federal group called "mail handlers". [261] As noted in paragraphs [25] and [26], above, on January 24, 1992, the date of the Commission's Final Investigation Report of this Complaint, with its recommendation that the Complaint be referred to the Tribunal, there were 2,310 CR positions, separated into levels of CR-2 (260 positions), CR-3 (950 positions), CR-4 (950 positions), and CR-5 (150 positions). There were 43,099 PO positions, separated into PO-INT positions (with four levels), PO-EXT positions (with three levels) and PO-SUP positions (with 6 levels). Although the actual effective date of these numbers has not been identified in the Commission's Final Report, it is assumed they represent the populations of the two groups as of the date of the Final Report, or close to that date. [262] In the year the Complaint was filed, 1983, the number of CR positions was virtually the same (2,316) as in early 1992 although the number of PO positions was larger by almost 8,000 positions (50,912). [263] Section 11 of the Act addresses work and wages in the context of "pay equity". Historically, "pay equity" has attempted to address the gender-based segregation of work, and the wages which flow from this segregation. Traditionally, the wages paid for work generally performed by women have been less than those paid for work generally performed by men. Because section 11 does not provide a definition for what constitutes a predominantly gender-based occupational group, the Tribunal must seek clarification from sections 12 and 13 of the 1986 Guidelines. The Commission used its powers under section 27 of the Act to produce this practical guideline for group complaints. Sections 12 and 13 of the 1986 Guidelines permit a comparison between "occupational groups" as long as those groupings represent work being done predominantly by males and predominantly by females. [264] Section 13 of the 1986 Guidelines identifies several formulas for determining when an occupational group is considered to be predominantly of one sex. For example, an occupational group numbering more than 500 is deemed to be composed predominantly of one sex if at least 55% of its members are of that sex. In the Complaint before the Tribunal, each group, as a whole, was made up of more than 500 members both at the time the Complaint was filed, and at the time it was referred to the Tribunal. [265] The complainant group had indicated to the Commission, and expressed the belief in the wording of the Complaint itself, that it was a female-dominated group. The group chosen as a comparator was presented by the complainant as a male-dominated group. In 1983, over 80% of the CR group was comprised of female employees and just over 75% of the PO group was comprised of male employees.86 At the time of referral of the Complaint to the Tribunal in 1992, the CR group remained predominantly female, with a percentage factor of over 83% female, and the PO group (which was now made up of only the PO-INT and the PO-EXT subgroups, the PO-SUP subgroup having been removed by the Commission during its investigation) remained predominantly male, with a percentage factor of just above 71% male.87 [266] The Alliance and the Commission argue that these percentages are sufficient to classify the complainant group as being comprised of employees predominantly of the female sex, and the comparator group as being comprised of employees predominantly of the male sex. [267] The submissions of both the Alliance and the Commission concerning the gender predominance of the two groups are based on their interpretation of the 1986 Guidelines. Additionally, they argue that the Guidelines are, unless found to be ultra vires (which is not the case in this Complaint), binding on the Tribunal, according to the Act. [268] According to the 1986 Guidelines, argue the Alliance and the Commission, when an occupational group exceeds 500 in number, only 55% of the persons in the group need be of one gender to deem that group to be doing work of persons of that gender. Therefore, in this Complaint, the groups are deemed to be doing either work generally performed by women (the CR's) or work generally performed by men (the PO's) based on the fact that they are groups larger than 500 in total, and the percentage of either female or male members of each group makes its work representative of either female or male work. The argument is that this is a simple arithmetical computation which, once made, is one factor in choosing a complainant and comparator. It is the factor, however, which satisfies the element of section 11 (clarified by the Guidelines) which demands that, when one is dealing with a group complaint, the complainant be a predominantly female group and the comparator, a predominantly male group. [269] Canada Post argues that the percentages are illusory. Its submission is that the Postal Operations group cannot be viewed as a melded group. The PO group is, and traditionally has been, according to Canada Post, a group which aspires to the principle of "straight-line" wage rates. Canada Post's argument stresses that, during the history of the Complaint, the PO-4 level has always been the largest single element of the subgroup, PO-INT. It is the PO-4 level which is, according to Canada Post, most representative of the PO occupational group as a whole, and the classification category where the most PO jobs are found. Indeed, Canada Post argues that the PO-4 level of the Postal Operations group has never been anything but essentially neutral in its gender make-up and should be more properly regarded as representative of the entire PO group. In 1983, 53% of employees classified at the PO-4 level were male and 47%, female. In 1992, the figures were 50.6% male and 49.4% female. If the Postal Operations group were defined in the manner of the PO-4 level, Canada Post submits that, as the comparator, it would not fit within the definition of a "predominantly male" comparator group pursuant to the Guidelines. [270] Canada Post's argument is that to take the Postal Operations group as a whole is to ignore the historical trend by which the number of PO-4 level employees is becoming increasingly the most critical and representative category of Postal Operations workers. In fact, employees classified at the PO-4 level within the Internal Mail Processing and Complementary Postal Service Subgroup represented just over 83% of its Subgroup total in 1983, and 88% in 1992. On the other hand, as a percentage of the entire Postal Operations group, PO-4 level employees represented 41% in 1983 and almost 42% in 1992. [271] The Tribunal does not accept this argument. The federal government job classification scheme is predicated upon the concept of groups of employees, bound together by occupational job categories. Within these groupings, the concept of levels is connected to wage differentials. Historically, these levels, with their wage differentials, were based on factors such as seniority, management's view of the importance of the work performed at each level, and the requisite training and skills necessary. That a union at Canada Post, representing many or all of the Postal Operations group may have decided to attempt to create a situation where the classification levels are essentially unrelated to wage differentials cannot change the historical concept that is the basis for the groups and levels themselves. It is this concept that is important to the designation of "occupational group" in sections 12 and 13 of the 1986 Guidelines, and to the issue of "pay equity" in section 11 of the Act. [272] Therefore, the Tribunal accepts that the complainant occupational group, the CR's, and the comparator group, the PO's, are representative, respectively, of a female-dominated group and a male-dominated group because each is over 500 in number, and because each contains at least 55% of female employees (the complainant CR's) and male employees (the comparator PO's). This conclusion is based upon the 1986 Guidelines which indicate the importance of the size of each group, and the necessary percentage of either males or females in each occupational group of a specified size which will deem the group to be either male-dominant or female-dominant. [273] The Tribunal is bound by the Act to follow the Guidelines which address the specifics of the Complaint before it, a "pay equity" complaint under section 11 of the Act, dealing with occupational groups. [274] Canada Post submits that, even if the groups are gender appropriate, the Alliance's choice of the Postal Operations group as its comparator was made because of that group's position, at the time, as being highly paid. Such a choice, in the "pay equity" context, would, in Canada Post's submission, be "cherry picking" and, therefore, not appropriate. [275] Mr. Norman Willis, a witness for Canada Post who was accepted by the Tribunal as an expert in pay equity and in job evaluation, was one of a number of witnesses who explained the concept of "cherry picking". [276] He explained that, in a "pay equity" group complaint, the complainant group chooses its comparator group. "Cherry picking" in "pay equity" situations envisions a scenario where the complainant group chooses a comparator group which, while often small in members, represents the most highly paid of a number of available comparator groups. Although wages, understandably, is one natural aspect of the choice, as the "pay equity" complaint always involves an allegation of payment of less wages to the complainant when compared with the chosen comparator, choosing a group based solely on its characteristic of having high wages compared with the complainant group is not acceptable as a starting point for a legitimate "pay equity" comparison. It would skew the results of evaluation and comparison, in favour of the complainant. Allowing a "cherry picked" comparator would create upheaval within an establishment, as subsequent comparisons would be inevitable between the original complainant and other workers. [277] During his explanation of "cherry picking", Mr. Willis expressed the opinion that the Complaint before the Tribunal was tainted from the beginning because of the complainant's "cherry picking" of the comparator, based on the relatively high wages paid to employees in the Postal Operations occupational group. When confronted with the fact that the membership of the PO group was by no means a small group, but rather represented approximately 80% of all Canada Post employees, he agreed that this choice would have been a "very big cherry".88 [278] On behalf of the Commission, Mr. Paul Durber, Director of the Pay Equity Directorate at the Commission, and accepted by the Tribunal as an expert in pay equity, indicated in his evidence that the Postal Operations group, as a whole, was approved by the Commission as a suitable comparator group, as it was part of the employer's occupational groupings. At the beginning of the Commission investigation, the PO group also appeared to offer a certain ease of evaluation and comparison because of the general homogeneous nature of the various jobs in each of the PO-INT and PO-EXT subgroups. [279] According to the evidence of Mr. Chris Jones, the union representative for the complainant group, one reason the comparator group was chosen was because of similarities in the duties and responsibilities of certain CR and PO jobs. A most obvious example was a CR job entitled `customer service clerk' and a PO job entitled `wicket clerk'. Although each job appeared to call for almost identical work, at the time of the Complaint each was paid differently. The superior wage of the wicket clerk and other PO jobs/positions made the apparently predominantly male Postal Operations group an obvious choice as comparator for the complainant. Additionally, the PO group represented, in absolute numbers, the majority of postal employees. [280] Mr. Jones indicated that although the PO wages were thought to be generally higher than those of the CR's, the sheer size of the Postal Operations group was significant as a reason for its choice. As the largest group of Canada Post employees, representing by far the majority of the employer's total number of employees, the PO's were a natural choice of comparator for the CR's. The fact, too, that some of the work being performed by employees in both the complainant and comparator groups was similar in terms of skill, effort, responsibility, and working conditions underlined, for the complainant, the appropriateness of its choice of comparator. [281] The Tribunal accepts that the largest occupational group within the organization, a group representing about 80% of the total Canada Post employee population, was an appropriate group to choose as a comparator. It appeared to be a predominantly male occupational group according to the Guidelines. The additional knowledge that certain members of the PO group were performing work which, in some instances at least, was similar to the work being performed by the complainant group added to the appropriateness of the choice. [282] Additionally, the evidence indicates that there were few other comparators which could have been chosen. At the time of the issuance of the Complaint, the General Labour and Trades, and the General Services occupational groups - both apparently male-dominated, according to the Guidelines - represented a small percentage of Canada Post employees. Moreover, there is no evidence that the work being performed by members of these groups was observed to be similar to that of any members of the CR complainant group. [283] Accordingly, the Tribunal finds that the complainant, a predominantly female occupational group, and the comparator, a predominantly male occupational group, are appropriately designated under section 11 of the Act and the 1986 Guidelines as representative groups for comparison of work generally performed by women and work generally performed by men. Therefore, the first element necessary to the establishment of a prima facie case under section 11 of the Act has been met. C. Are the Complainant and the Comparator groups employed in the same `establishment'? [284] Subsection 11(1) of the Act reads as follows: It is a discriminatory practice for an employer to establish or maintain differences in wages between male and female employees employed in the same establishment who are performing work of equal value. (emphasis added) [285] Subsection 11(3) of the Act states: Separate establishments established or maintained by an employer solely or principally for the purpose of establishing or maintaining differences in wages between male and female employees shall be deemed for the purposes of this section to be the same establishment. [286] Section 10 of the 1986 Guidelines reads as follows: Employees of an Establishment For the purpose of section 11 of the Act, employees of an establishment include, notwithstanding any collective agreement applicable to any employees of the establishment, all employees of the employer subject to a common personnel and wage policy, whether or not such policy is administered centrally. (emphasis added) [287] The French language version of section 10 of the 1986 Guidelines reads as follows: Employés d'un établissement Pour l'application de l'article 11 de la Loi, les employés d'un établissement comprennent, indépendamment des conventions collectives, tous les employés au service de l'employeur qui sont visés par la même politique en matière de personnel et de salaires, que celle-ci soit ou non administrée par un service central. (emphasis added) (i) Evolution of the Definition of Establishment [288] The Commission established the Task Force on Equal Pay in November 1977 "to study the implications of administering section 11 of the Act". Among other matters, the Task Force addressed the question of defining the word `establishment' as used in subsection 11(1). [289] The Task Force's report, entitled "Equal Pay for Work of Equal Value" and dated March 1978, recommended that `establishment' be defined along the following lines, and be included in a guideline: `Establishment' means all buildings, works or other places of business of an employer within the limits of the larger of a municipality, municipal district, metropolitan region, county or the national capital region. (Recommendation to be completed)89 [290] The Task Force noted that this definition was incomplete and would require further consideration. In this connection, it observed that "the introduction of the word `establishment' in section 11 was deemed to be an attempt to introduce the factor of regional differences in wage levels as a legitimate reason for differences in wages between employees".90 [291] Mr. Paul Durber testified that, in his opinion, the above-noted geographic definition of `establishment' probably did not find its way into the September 1978 Guidelines because the Task Force had highlighted some conflicting views on the issue. In addition, he mentioned the need for the Commission to gain more experience in implementing section 11 before enshrining the definition in the Guidelines.91 There was, therefore, no definition of `establishment' in the 1978 Guidelines. [292] In September 1984, the Commission issued the Interpretation Guide for section 11 of the Act, entitled "Equal Pay for Work of Equal Value".92 This Guide was intended to assist employers and employees to understand how the Commission would assess complaints by providing definitions of certain terms used in the Act and elaborating on the `reasonable factors' included in the 1978 Guidelines. [293] The 1984 Interpretation Guide defined `establishment' as follows: An establishment refers to all buildings, works or other installations of an employer's business that are located within the limits of a municipality, a municipal district, a metropolitan area, a county or the national capital region, whichever is the largest, or such larger geographic limits that may be established by the employer or jointly by the employer and the union. [294] Mr. Durber testified that despite the 1984 Interpretation Guide's general support of the geographic definition of `establishment', the Commission did not apply it consistently as the Commission also frequently used an alternative definition based on functional lines, particularly for cases involving the Federal Government and national organizations which it considered to be single nation-wide `establishments'. [295] The Chief Commissioner, in a letter dated March 19, 1985, to about 60 public and private sector employers, including Canada Post, sought their views on a number of proposed definitions and guidelines, including the definition of `establishment'. The request was aimed at removing much of the uncertainty experienced by some employers in implementing their own "pay equity" programs. [296] The Chief Commissioner's letter indicated that it was proposed to define `establishment' more broadly and on a different basis than the one used in the Commission's Interpretation Guide. The proposal was that a functional definition would replace the Guide's geographic definition. Specifically, the Commission proposed that: Employees of an employer shall be considered to be in the same establishment when they are subject to a common set of personnel and compensation policies, regulations and procedures; and when these policies, regulations and procedures are developed and controlled centrally even though their administration may be delegated to small units of organization. [297] Canada Post's Vice-President, Personnel, responded to the Chief Commissioner's letter on June 3, 1985, specifically addressing the proposed definition of `establishment' as follows: The Commission's proposed definition of `establishment' is also a source of concern. While the Commission has clear authority under the provisions of Section 22 of the Canadian Human Rights Act to provide guidelines, it is our understanding that those guidelines must conform with the Act taken as a whole. To move from a geographically-based to a functionally-based determination of establishment, we suggest, would be inconsistent with the Act and at odds with other statutory and judicial interpretations of the expression which frequently speak in terms of location rather than function. [298] Consultations between the Commission and the various employers, including Canada Post, led to certain changes in the proposed definitions and guidelines. Ultimately, the 1978 Guidelines (as modified in 1982) were replaced by the November 1986 Guidelines which for the first time included a definition of `establishment' (section 10). This definition was functionally-based along the lines of the one identified in paragraph [296] above. [299] At the same time, a new `reasonable factor' was added to the then-existing list (section 16), recognizing that a difference in wages between male and female employees performing work of equal value in the same establishment is justified by "regional rates of wages, where the wage scale that applies to the employees provides for different rates of wages for the same job depending on the defined geographic area of the workplace". [300] Accordingly, the Commission had formally moved, by late 1986, to a functionally-based definition of `establishment' from its earlier, inconsistently applied, policy of employing a regionally-based definition. The reasons for the Commission's shift are best explained by Mr. Durber's following response: Q. Could you remind us of the rationale for shifting to the functional basis? A. Yes. My view is that it was to allow a broader, let us say, more liberal interpretation and application of section 11.93 [301] The Commission indicated that during the Investigation Stage of this Complaint (1984-1991), the assumption that the complainant and comparator groups were in one `establishment' was uncontested. Canada Post did not raise the issue of the definition of establishment within the context of the Complaint during this period, although it was involved in discussions with the Commission on this very topic during the drafting of the 1986 Guidelines. [302] Mr. Durber testified that he recalled learning from the investigator of the Complaint "sometime in 1991" that Canada Post's lead contact had indicated that the Corporation was "thinking about whether establishment might not be an issue". Mr. Durber was unaware of any formal indication from Canada Post that the definition of `establishment' would be argued as part of the Respondent's challenge to the Complaint.94 [303] After a lengthy cross-examination, including questions on the Commission's work to define `establishment', Mr. Durber was asked by Commission counsel if his original opinion concerning the meaning of `establishment' had changed. He replied that, in the context of this Complaint, he ... continue[d] ... to see there being one establishment, a good deal of commonality at the level of management accountability and otherwise, bringing those groups into one establishment, as meant by section 10 of the Equal Wages Guidelines, and, thus permitting continued comparison of job value as between clerks and postal operations people.95 [304] Both the Commission and the Alliance acknowledged that counsel for Canada Post did raise questions about the meaning of the term `establishment' in the context of section 11 of the Act and section 10 of the 1986 Guidelines during his opening remarks before this Tribunal, in February 1993, as follows: The next issue is the one that we see as being of pivotal importance, and that is the question of establishment ... So, the legislation certainly contemplates different establishments within one employer. The big question, which has never been considered, and as far as we are aware, never been argued, is: What is an establishment?96 [305] Canada Post's counsel subsequently addressed the matter of `establishment' specifically in the context of the Guidelines, noting that "the 1978 Guidelines contain no definition of `establishment'. The 1986 Guidelines contain a definition of `establishment'".97 [306] He then stated what Canada Post's position would be, as follows: Our position will be that the other side must come up with a definition of `establishment' which includes the CR's and the PO-Internal, PO-External and PO-Sups in the same establishment, to the exclusion of other groups. If the definition of `establishment' excludes other workers who work in the operational area at Canada Post, how does it include the CR's?98 (ii) The `Airlines Case' [307] All parties agree that this Tribunal is bound by the decision of the Federal Court of Appeal, dated March 18, 2004, which addressed the issue of the definition of `establishment' in the context of section 11 of the Act, and section 10 of the 1986 Guidelines. This decision reversed the decision of the tribunal and the Federal Court (Trial Division) in a "pay equity" complaint brought by flight attendants (predominantly female) at Air Canada and Canadian Airlines, who were represented by one union. They named, as their comparator groups, pilots and maintenance/technical workers (predominantly male) who were represented by two other unions. A fundamental issue dealt with by the tribunal as a preliminary matter was whether the complainant and the comparators were employed in the same establishment. [308] The tribunal found that the complainant, represented by the Canadian Union of Public Employees (Airline Division), failed to demonstrate "any semblance of essential common wage and personnel policies across the bargaining units"99 and concluded that the three employee groups were not in the same `establishment' for the purposes of a section 11 complaint. The Federal Court (Trial Division) upheld the decision of the tribunal.100 [309] The Federal Court of Appeal unanimously reversed this finding, deciding that the functionally-based definition of `establishment' in section 10 of the 1986 Guidelines would, in most cases, place all employees of an employer in the same establishment even though some employees might be represented by different unions.101 The complainant and the chosen comparators in the `Airlines Case' were, accordingly, found by the Court to be in the same establishment for the purposes of section 11 of the Act. [310] The Federal Court of Appeal highlighted the importance of interpreting human rights legislation broadly, liberally and purposively in the context of the words and purpose of the statute concerned. The Court stressed the necessity to interpret the Act and the 1986 Guidelines in a purposive manner, always being aware of the quasi-constitutional nature of the Act, and its aim to eliminate discrimination. The Court noted that in complaints brought under section 11 of the Act, the "broad purpose" of the section - "to preclude wage discrimination on account of gender"102 and "the more particular purpose ... the promotion of pay equity"103 - must guide the interpretation of the words of the section and the Guidelines promulgated by the Commission. [311] The Court indicated that the test for the interpretation of the word `establishment' in the context of these purposes was whether there was "evidence that the employer treats the employee groups as being part of a single, integrated business. If there is such evidence, the employees are in the same establishment".104 Evans, J., in his concurring reasons, stated that "...employees of the same employer will normally be subject to `a common personnel and wage policy' when they are employed in the same business entity".105 [312] In other words, the definition of `establishment', as noted in section 10 of the 1986 Guidelines, was accepted by the Court as necessitating evidence of common personnel and wage policies which would be general in nature. There would be no need to examine the minute details of different collective agreements negotiated by unions which represent the groups being compared. The Court agreed that "the definition of establishment should not be based on the myriad of details found in collective agreements".106 [313] Mr. Justice Evans, in his concurring reasons, also indicated that "[t]he terms of collective agreements that apply to complainants and other employees with whom they wish to be compared for pay equity purposes are irrelevant to determining whether the complainants and the comparators are employed in the same establishment within the meaning of section 11 of the ... Act ... and section 10 of the Equal Wages Guidelines..."107 (iii) Impact on the Current Case of the Federal Court of Appeal Decision in the `Airlines Case' [314] Although, as noted above, all parties to the Complaint before this Tribunal acknowledged that the Tribunal is bound by the decision of the Federal Court of Appeal in the `Airlines Case', Canada Post argued, in its written submissions, that the decision was also important to the Tribunal because it underscored several of Canada Post's previous arguments. [315] Three of Canada Post's arguments deserve particular reference. The first related to the question of the essential objective of section 11 of the Act and the presumption of discrimination based upon sex, found in that section. The second dealt with an accurate and fair determination of the value of `wages' for the purposes of a section 11 inquiry. The third concerned the relevance of collective bargaining strength in a "pay equity" study. [316] As noted in paragraph [310], clear guidance on the question of the essential objective of section 11 has been provided by the Federal Court of Appeal in the `Airlines Case' decision. With respect to the issue of the presumption of discrimination, the Tribunal has already addressed this matter in Section IV, C of this Decision. [317] Canada Post's second argument relating to the definition of `wages' is considered in the context of Section VIII, entitled Non-Wage Forms of Compensation, which follows in this Decision. [318] Canada Post, in its third argument, has reasoned that the Federal Court of Appeal decision recognizes that bargaining strength is not only relevant to the `Airlines Case' but also constitutes an important part of any inquiry into sex-based wage discrimination. [319] The Tribunal finds that the Federal Court of Appeal decision confines its consideration of bargaining strength to ...the factors which the Tribunal is to use in determining whether employees receive equal wages and perform work of equal value. To the degree that the evidence of differing bargaining strength is evidence pertaining to these factors, it is relevant and will be considered by the Tribunal at the substantive phase of the analysis.108 (emphasis added) [320] The factors are identified by the Federal Court of Appeal as being those set out in section 11 of the Act and in the Guidelines. They are, therefore, by definition, limited to the interpretation of section 11 and to the "reasonable factors" identified in section 16 of the 1986 Guidelines. [321] The Tribunal does not find that the decision of the Federal Court of Appeal in the `Airlines Case' sanctioned an `open-ended' approach to the "reasonable factors", allowing the admittance of additional factors such as bargaining strength to those already provided for in the Guidelines. The Federal Court of Appeal clearly indicates that to the degree that this evidence of differing bargaining strength is evidence pertaining to the factors set out in section 11 of the Act and in the Guidelines, that evidence will be considered at the substantive phase of a tribunal's analysis. [322] Has `bargaining strength' been presented in this Complaint as evidence pertaining to the factors listed in section 16 of the 1986 Guidelines as `reasonable factors' to justify an employer establishing or maintaining a difference in wages between male and female employees performing work of equal value in the same establishment? Canada Post has submitted that the differences in the collective bargaining philosophies of the complainant and comparator groups must be considered by the Tribunal. It has also argued that the historically gender-neutral, and numerically large, PO-4 sub-group, an active representative in the collective bargaining process for the PO group, must be considered because of its "straight-line" wages philosophy. [323] The Commission and the Alliance have submitted that union bargaining strength has never been designated as a "reasonable factor" in the Guidelines. Canada Post's arguments, therefore, should not be considered unless there is some evidence which links those arguments to the "reasonable factors". Very early in the hearing, counsel for the Commission addressed this very point, as follows: Another point that is not disputed is the strength of unions or union bargaining strength or whatever. It's not in the Guidelines. It wasn't in the Guidelines in 1978, 1982, or 1986. It has never been in the Guidelines...109 [324] The Tribunal is not aware of any bargaining strength evidence specifically pertaining to the factors set out in section 11 of the Act and in the Guidelines having been submitted, at any time, by the parties in this Complaint. [325] The original Complaint did not address directly the issue of `establishment'. The Complaint was drafted by the Complainant to indicate that the employer, Canada Post, had allegedly violated section 11 of the Act "by paying employees in the male-dominated Postal Operations Group more than employees in the female-dominated Clerical and Regulatory Group for work of equal value". Further, it was alleged that the sex composition of the two groups was the basis for the difference in wages, and, thus, the Complaint alleged discrimination based on sex. [326] Therefore, as noted by Mr. Durber in his evidence about the Commission's interpretation of `establishment' when it was dealing with complaints brought by groups working for the Federal Government and other large nation-wide corporations, it is apparent that the Complainant and the Commission assumed, from the inception of the Complaint, that `establishment' and `the employer' were synonymous. [327] For the reasons given by the Federal Court of Appeal in the `Airlines Case' decision, this assumption would appear to be the correct one. Although there will be times when an employer has more than one establishment within its purview, in most cases the employer and the term `establishment', in the context of the Act, will be one and the same when the employer treats its employee groups as being part of an integrated business entity with a commonality of personnel and wage policies. [328] In this Complaint, considerable evidence was presented, usually through Canada Post witnesses, that Canada Post operated as an integrated business entity with, generally, overall personnel and wage policies. Several examples of such evidence are considered below. [329] In May 1997, Elisabeth Kriegler, President and CEO of Elisabeth Kriegler and Associates, an organization of Change Management Consultants, appeared before this Tribunal. She had been called by Canada Post as a general witness. She had served at the Vice-Presidential level in several corporate functional areas in Canada Post during the period 1983 to 1992. She then occupied the office of Senior Vice-President - Administration from 1992 to 1995. From 1995 to early 1997, she was President of Canada Post Systems Management Ltd., a company which owned the intellectual property of a number of management systems and processes developed, over the years, by Canada Post and marketed, internationally, through licensing arrangements. [330] Ms. Kriegler emphasized that operating a postal system is probably one of the most complex logistics businesses in the world involving, in Canada Post's case, not only its own employees but also many thousands of others under contract. "All of them are an intricate part of this integrated network, all of which must operate in concert and according to standards and in harmony..."110 [331] As pointed out in paragraph [33], in carrying out its objects, the new Crown Corporation created in October 1981 was to have regard to "...the need to conduct its operations on a self-sustaining financial basis while providing a standard of service that will meet the needs of the people of Canada...". Ms. Kriegler indicated that this called for the efficient and effective collection, processing and delivery of mail within a financially competitive framework which, in turn, necessitated the development and introduction of a comprehensive series of operational, financial, human resources, marketing and management systems. [332] Ms. Kriegler reported that the operations of Canada Post "...are the heart and soul of this Corporation, how without it, it is not a Corporation, it is not a business...".111 The establishment of the National Control Centre in Ottawa, in the mid-1980s, reflected the crucial need for a centralized operations control and monitoring system. [333] Members of Canada Post's senior management meet daily in the National Control Centre to review operational problems which are fed into headquarters from divisional control centres across the country. This encourages operating people to make decisions as and where problems arise. The operating network is supported by a series of systems that track and trace the movement of mail throughout Canada. [334] The Tribunal members had the opportunity to visit the National Control Centre and saw it in action with its inward and outward flow of information visually displayed, in colour, on screen, against the backdrop of a giant map of Canada. [335] The role and impact of Canada Post's operational functions including the National Control Centre are, perhaps, best summed up by Ms. Kriegler's following statements made before the Tribunal in May/June 1997: ...and in fact today, notwithstanding decentralization and empowerment ... the control of the operation is totally central today and must always remain so because the minute you let that loose, the network starts falling apart. So it is centrally controlled and that is the role of the Control Centre and that is why the President and the Chairman and the Chief Financial Officer and the Marketing Senior VP and the Operating Senior VP and all their senior people sit at that table every single morning. That is the central control.112 All the employees know that they are a component or a part of that larger integrated system.113 [336] Certainly, the nature of the operations of Canada Post, and particularly the role of the National Control Centre, offer clear evidence of Canada Post functioning as a single integrated business and treating all of its employee groups as essential components of that entity. [337] Ms. Kriegler also demonstrated that this was not limited to the area of operations. The development of management functional areas of responsibility following the creation of Canada Post as a Crown Corporation went well beyond the critical area of operations. Ms. Kriegler reported that the various supporting management functions were gradually brought in from the different agencies of government and developed under the wing of Canada Post with its own staff. [338] Functions such as finance, personnel and staff relations, and labour relations were transferred shortly after Crown Corporation status. Purchasing, pay and benefits, property management and legal affairs were transferred at later dates. Canada Post staff had to be built up, and policies, standards and procedures had to be developed in each of the functional areas. [339] The 1980's also saw a growing emphasis on marketing and meeting the customers' needs. Retail outlets and franchising arrangements evolved. Even a Research and Development Centre emerged where new Canada Post products, services and equipment were conceived, developed and tested. [340] Organizationally, there was, according to Ms. Kriegler, an Executive Vice-President of Personnel and Labour Relations in 1983. By 1992, Ms. Kriegler, herself, assumed policy responsibility as Senior Vice-President - Administration, for human resources, labour relations, personnel, legal affairs, and several other functions. [341] Ms. Kriegler identified certain situations where a common corporate approach was taken by Canada Post in the personnel policy field or in areas closely related to personnel policy, or, as it is currently more frequently called, Human Resources policy. One was the creation of the Canada Post Learning Institute which established a common centralized training budget by drawing particular training program funds from individual operating units. A principal objective was to coordinate the development and use of training programs for employees from across the entire organization to derive a more effective return for both employees and the employer. [342] Another example was with respect to labour relations and collective bargaining strategies which, inevitably, touch on wage policy. Between bargaining sessions, Canada Post coordinated, at the senior management level, the development of goals and strategies it would like to achieve with its various unions. Ms. Kriegler, in her capacity as Senior Vice-President - Administration, would take such proposed goals and strategies to the Management Committee for consideration. [343] There was also evidence presented by other Canada Post witnesses who appeared before this Tribunal which indicated central corporate direction in areas involving Compensation and Benefits, labour relations, employee training and human resources policy. Examples are explored below. [344] Mr. Harry Phillips, Director - Safety, Ergonomics and Industrial Hygiene at Canada Post headquarters, testified in August 1997. He spoke about the Corporate Manual System which came into effect in 1989 for the purpose of providing appropriate corporate direction in consolidating all functional procedures. As examples, he mentioned procedures dealing with functional areas such as operations, engineering, human resources (personnel), and safety hazards. [345] Mr. Ron Featherstone testified in December 1998, as Manager of Collection and Delivery for the Northern Zone in Vancouver. He indicated that one of his responsibilities was to establish "...long term objectives that complement the Corporation's Operating Principles and its Corporate Objectives...". Under cross-examination by Commission counsel, Mr. Featherstone agreed that it is his understanding that corporate principles and corporate objectives are intended to guide all employees of the Corporation, and would apply to both CR and PO employees and their respective work.114 [346] In April 1999, Ms. Joanne Hronowski, a Payroll Officer for the Prairie Region (who had, on occasion, served as Acting Manager - Pay and Benefits) testified that several manuals which had originally been issued by the Department of Supply and Services, guided Payroll and Benefits officers in their work. Updates to the manuals, communiqués and informative circulars about items such as particular kinds of benefits, were received from Head Office. "...So most of the stuff was vetted at the Head Office level and then came through us".115 She also testified that the then-current payroll system used in her region was a national one. "It is driven totally by Head Office".116 [347] Mr. Charles Reece, a long-time employee of Canada Post and, most recently, Manager for the Revenue Verification Unit of the Gateway Bulk Mail Facility at Mississauga, Ontario, when testifying in April 1999, about his facility's capacity to train supervisors and staff, said as follows: And at times we even had people from Head Office come down. Usually when something new was being introduced and it was something that we didn't know anything about, they would come down and do formalized training with us.117 [348] In May 1999, Mr. Frank Pasacreta, Vice-President of Operations for the B.C. Maritime Employers Association, testified before the Tribunal. He had held this position since 1987. Prior to that, he had been Manager of Labour Relations for Canada Post in Vancouver, responsible for the Pacific Region from 1984 to1987. Mr. Pasacreta was asked by Commission counsel if, during his tenure in the Pacific Region, he or his staff had been involved in collective bargaining negotiations for employees in his Region. His response was as follows: ...primarily the people who did the bargaining were the folks at head office. Some of us sat in on some of the sessions. I sat in on a few myself, but the primary responsibility was a head office responsibility.118 [349] Ms. Karin Vogt, Compensation and Benefits Officer, at the management level, from Burnaby, B.C., testified in September 1999 that Superannuation, Procedures and other manuals constitute an important source of information for those working in her area of responsibility. The use of computer-based record systems is also critical. She confirmed that manual up-dates and communiqués came from Head Office. She also indicated that training sessions were sometimes handled by headquarters. Specifically, she noted that "...last year we had someone come out from head office and she went over the disability insurance plan".119 [350] Mr. Brian Wilson testified in May 1999. A long-time employee of Canada Post, he retired in 1995. His last position was Manager - Employee Relations, Central Region. During cross-examination by Commission counsel, Mr. Wilson confirmed that it was his understanding that a series of personnel policy directives existed in Canada Post, most of which would have been issued by the corporate Human Resources group in headquarters. These are applicable to all employees throughout the Corporation, and include the following: Official Languages Policy Employee Assistance Program (counselling and referral service) Sensitive Information Policy Religious Observance, Sick Leave and Pregnancy, Modified Duties, Sign Language Human Rights and Employment Equity, including Partnering with Women, Sexual Harassment, People with Disabilities, Visible Minorities [351] The Tribunal concludes that the above-noted evidence demonstrates that Canada Post, during the time frame of this Complaint, had become an increasingly well integrated business entity with considerable corporate level policy direction. The corporate policy direction extended to the various regional operations of Canada Post, encompassing its many employees across the country. Indeed, much of the evidence suggests a very good mutual working relationship between the regions and Head Office. [352] Human Resources (or personnel) policy direction clearly emanated from corporate headquarters and addressed all employees as members of the integrated business. Equally, labour relations, including collective bargaining negotiations which include wage policy considerations, received corporate direction, and even direct involvement, from Head Office. [353] Therefore, the Tribunal finds that all employees of Canada Post have been, as applicable, subject to the various common corporate policy directives issued by the Corporation, including those respecting personnel and wage policies. As a result, the Tribunal finds that, for the purposes of section 11 of the Act, the employee groups representing the complainant and the comparator are employed in the same establishment. [354] Accordingly, the second element necessary to the establishment of a prima facie case under section 11 of the Act has been met. D. Does the comparison of the work of the Complainant group and the Comparator group establish that the work being compared is equal in value? Are the jobs/positions data and the process comparing the work of the Complainant and the Comparator groups reliable? (i) Background [355] All three parties have recognized the importance of undertaking job evaluations with reliable job information and with a reliable job evaluation plan. Additionally, the plan and the process chosen must be suitable for "pay equity" purposes. This is not in dispute. What has to be determined, however, is the extent of the reliability of the job information and of the methodology employed in the evaluation of the jobs/positions involved in this particular Complaint. To be able to come to a reasonable conclusion concerning the value of the work performed by the complainant and the comparator occupational groups, the evaluation process as a whole must be reliable, on a balance of probabilities. [356] The Commission presented, as evidence, a booklet entitled "Implementing Pay Equity in the Federal Jurisdiction".120 Originally, this had been a paper written by staff within the `Pay Equity Directorate' of the Canadian Human Rights Commission. It was published as a booklet by the Commission in March 1992. At the time of publication, the Commission had been involved in a number of "pay equity" complaints, one of them the Complaint before this Tribunal. [357] The introduction to the booklet states that it had been prepared in response to requests from employers and unions. It was meant to be advice about how "to pursue effective pay equity programs" under the Act and its accompanying Guidelines. The introduction states further that the points made in the booklet "are based on the experience of Commission staff working in pay equity, as well as comments received from employees and unions on earlier drafts of this paper". [358] While this booklet did not exist during the Investigation Stage (1984-1992) of this Complaint, much of the thinking expressed therein was evolving within the Commission during that period. It is, therefore, helpful to refer to it to provide background to the Commission's thoughts, by 1992, about job evaluation plans, their administration, and the collection of job data/information. The following paragraphs are excerpts from various sections of the booklet which are considered pertinent. Job Evaluation Plans Job evaluation plans are the key to determining what constitutes "work of equal value". They do not eliminate subjectivity from the process of valuing work, but they do make the process systematic and so ensure that values are applied in a way that is consistent. Without such a systematic examination of job values, it is easy to perpetuate prevailing stereotypes about the worth of different occupations - stereotypes that generally work to the disadvantage of jobs done by women. Job evaluation plans may be developed especially for an organization or they may be based on a standard plan purchased from a consulting firm. These latter are "off-the-shelf" and have established criteria for evaluations, while others use computers to generate criteria based on data gathered within the organization. All plans eventually rely on a set of standard factors and weightings against which different jobs are rated. In order to be an acceptable instrument for implementing pay equity, a plan must meet a number of tests: it must include the four value criteria set out in the Act and elaborated upon in the Guidelines: skill, effort, responsibility and working conditions; it must measure value in a way that allows ready comparison between jobs - usually this means adopting a point-factor rating system - other types of systems may be acceptable in certain circumstances, for example, paired comparisons in small organizations; and it must be free of gender bias: Gender bias refers to any factor or behaviour which, even unintentionally, unfairly favours one sex over the other. In the context of pay equity studies, gender bias can affect both the design of job evaluation plans and their application. Because pay equity is premised on the assumption that the worth of different positions across an organization should be compared, use of a single plan to evaluate all jobs is essential. With respect to the plans themselves: factor definitions should be generic, relying as little as possible on illustrative job descriptions that could produce bias - this helps minimize raters' tendency to stereotype tasks or functions as male or female; the factors used must incorporate all significant elements of all the work being evaluated, including those aspects of female-dominated jobs traditionally overlooked in job evaluation; weightings given to factors typical of predominantly male work and predominantly female work should be equitable; and computerized plans should be programmed such that important elements of traditionally female work are not left out of the automated development of factors and weighting. Typically, this requires especially careful design of questionnaires to ensure that key information is not missed. With respect to the administration of plans: women and men should have similar representation on all committees; participants should be drawn from all levels of the organization; and it must be made clear to participants that during the pay equity process, all are equal - those from the lower ranks of an organization should feel comfortable expressing their own views and challenging the opinions of others. Collection of Job Information With respect to the collection of job information: job descriptions should not be used on their own or treated as the primary source of data, since they often replicate prevailing stereotypes and are not always an up-to-date, accurate reflection of work done; instead, sources of information which allow the incumbent himself or herself to outline work duties should be employed - in most cases, this involves use of a questionnaire; the questionnaire must be carefully designed and tested, possibly through a pilot study to ensure that it captures all significant aspects of male- and female-dominated jobs and is appropriate to the structure of the job evaluation plan; it must be made clear to all involved that the questionnaire should reflect actual work being done, not theoretical duties; supervisors should be given an opportunity to review completed questionnaires and add any comments or reservations on an attached sheet; and where questionnaires do not seem to offer sufficient information, they may be followed up with face-to-face, structured interviews between evaluators and incumbents. Questionnaires can be open, closed or mixed, depending on the requirements of the plan, the preferences of those running the study, and the size of the organization. In smaller organizations, it may not be possible to carry out the testing needed to develop a reliable closed questionnaire. However, open questionnaires must be used with care. Efforts must be made to ensure that men and women use similar language to explain their work. Thus, when open questions are chosen, instructions should be included which encourage all those filling out the questionnaire to use accurate terms in describing their job functions. Examples showing how different sorts of duties could best be described may be appropriate. Joint Employer-Employee Cooperation Although the legal onus for ensuring pay equity is on the employer, the Commission believes that pay equity programs are most successful when based on full cooperation between employer and employees ... Both sides must contribute to the process. Employers provide the funding for studies and any necessary adjustments, as well as the informed perspective of managers on what different jobs entail. Employees provide the key job information and support for any changes to prevailing relativities that may result. Both employers and employees have input into the definition of job worth as reflected in the job evaluation plan and its application. Joint studies generally begin with an agreement between the employer and bargaining agent(s) which outlines the objectives of the initiative and its basic structure. A joint steering committee may be set up to choose an appropriate job evaluation plan, perform benchmark evaluations, establish evaluation committees, work out other details of the study and guide it through to a successful conclusion. Most of the actual evaluations are carried out by one or more evaluation committees, which, we suggest, should include a comparable number of women and men from all levels of the organization. Any wage adjustments found to be necessary as a result of the evaluations must be agreed to by both sides. [359] The Tribunal finds that the aforementioned points described in the Commission's booklet constitute a general guide and benchmark model for collecting reliable information and for processing that information in a manner that should, given an acceptable job evaluation plan and competent evaluators, result in the determination of reliable values of the work being assessed and compared in a "pay equity" study. [360] These points made by the Commission are the very points made by such experts as Dr. Pat Armstrong, accepted by the Tribunal as an expert in women's work, women's wages, and the sociology of equal pay legislation, who presented evidence to the Tribunal concerning, amongst other things, the history and development of the concept of "pay equity", and the methodologies used to implement that concept. [361] It should be noted, however, that the points made in the Commission's booklet are predicated upon the assumption that the "pay equity" process will be one which involves an employer and its employees in a working partnership. "Pay equity" will be the common goal of that partnership. The booklet, and its advice concerning "pay equity" studies, does not envision a process which is evolving in a litigious context. (ii) Issues [362] Consequently, the issues which will be addressed are as follows: What job evaluation system, or plan, was used to undertake the evaluation of the CR and PO jobs/positions, and how reliable was it? What process was used and how reliable was it in analyzing the collected job data/information for purposes of assigning values to the CR and PO jobs/positions considered? What job data/information was collected, and from what sources, and how reliable was it? What were the resulting values attributed to the various CR and PO jobs/positions, and how reliable were they? [363] These issues can best be considered by distinguishing between two periods of time: First, the duration of the Investigation Stage of the Complaint - 1984 to 1992, when the Commission was coordinating the collection of job data and performing job evaluations, and Second, the period after the establishment of the Tribunal in 1992, when the Alliance had engaged a three-person team of professional job evaluators to review the job data already collected by the Commission and augment it where possible, and to undertake independent evaluations of the jobs of the complainant and comparator occupational groups. The professional team was active in mid-1993 and late 1994, and re-visited their work in July 1997 and June 2000. E. Review of Job Information Collected and Methodology Used: Investigation Stage [364] A joint employer/employee follow-up study of the Complaint before this Tribunal was not undertaken. There was, therefore, no opportunity to establish a joint steering committee to co-ordinate the selection of a job evaluation plan, the gathering of job data/information, and the evaluation of jobs. Of necessity, the Commission took the lead, through its Investigation Stage, in coordinating matters relating to complaint follow-up with both the Complainant and the Respondent. [365] While a joint employer/employee study would have been the most suitable way of addressing the Complaint, the Tribunal finds that the lack of such a study, for whatever reasons, need not pre-empt addressing the Complaint by other approaches. The Complaint was made pursuant to section 11 of the Act; the Commission's mandate is to investigate each complaint made to it under the Act. When the parties cannot be moved to a negotiated settlement, the Commission's job is to investigate a complaint to the best of its ability. For example, while the job evaluation plan used to determine the value of particular job work should, normally, be a plan already in use by the employer, in its absence an off-the-shelf evaluation plan would be acceptable if it is free of gender-bias and capable of generating a reliable result. (i) Commission's 1987 Job Evaluations [366] In this Complaint, as already noted in paragraph [17] the first job evaluations were conducted by Commission staff in 1987 based on data collected in 1986. Those evaluations involved what the Commission described as a random sample of 194 CR positions. The sampled CR positions were evaluated using Canada Post's System One job evaluation plan. No PO positions were evaluated in 1987. [367] System One was a plan that had been categorized as having "Hay-like factors". It did, however, contain some variations from the standard "Hay Method" evaluation plan, most especially with respect to the working conditions factor. As the Commission investigated the Complaint, System One was still under joint development by Canada Post and the Alliance. It was intended for use by employees represented by Alliance bargaining units throughout Canada Post. As Canada Post pointed out, System One would, therefore, not be suitable for the eventual evaluation of PO jobs, since their incumbents were represented by other bargaining units. Moreover, the Alliance advised against its use even for CR job evaluation purposes at this incomplete stage of development. [368] The principal sources of job information for the evaluation of the 194 CR positions in 1987 were successive lists of employee print-outs furnished by Canada Post and a Job Fact Sheet - a detailed Questionnaire - that had been designed by the Commission for completion by employees sampled from those lists. Upon its completion, with the requisite attachment of the relevant job description and organization chart by each employee respondent, the Job Fact Sheet was to be signed off by the appropriate supervisor and Division Manager. The questionnaire, or Job Fact Sheet, was assembled in the first half of 1986. During the summer of that year, it was completed by the CR employees who had been randomly chosen to be a representative sample of CR positions. [369] The Commission had decided that such a sampling of CR incumbents would be necessary since a full census of the total CR population of about 2,300 would be unmanageable in terms of time and money. A stratified random sample was developed in 1986 by a senior official of the Commission. It consisted, initially, of 246 names of CR incumbents plus 33 "alternates" for a total of 279. Subsequently, some names were dropped and others were added. The actual number involved is difficult to verify from the available documentation. The final proposed CR sample may have been as high as 355, including "alternates". What is clear, however, is that the Commission received 194 completed and useable Job Fact Sheets from CR incumbents which became the basis for the 1987 CR evaluation. [370] Meanwhile, an Interview Guide had been developed by the Commission with input from the Alliance and Canada Post. Its purpose was to guide the Commission's investigator during follow-up interviews which were to be conducted with the incumbents, to clarify answers given on the Job Fact Sheet. Space was provided on the form for the investigator to record comments made by the incumbent and the accompanying supervisor. The form was not seen by incumbents. It was intended that, like the Job Fact Sheet, the Interview Guide would be used with both CR and PO employees. In fact, however, both were used only to elicit information from the CRs. All interviews were completed by December 1986. [371] The Job Fact Sheet was used as the Commission's primary source of job information and the other materials served as secondary and tertiary sources. How were the job evaluations of the sample of 194 CR positions actually conducted in 1987? [372] An `evaluation team' comprised of two Commission officers was established to conduct the evaluations. These evaluations were done from April to September 1987. The team was supplemented by one of three additional officers, assigned progressively based upon which officer had interviewed the CR incumbent of the position being evaluated. The team, of mixed gender, used the System One plan, drawing data from the 1986 Job Fact Sheets, job descriptions, organization charts, and the Interview Guides. [373] Mr. Paul Durber, Director - Pay Equity of the Commission, indicated in his evidence before this Tribunal in June 1993, that he and the senior investigator of the Complaint had decided, about mid-1991, to discard the 1987 CR evaluations and to subject the 1986 Job Fact Sheet information to another job evaluation assessment. Most of the Commission's officers who had served on the 1987 evaluation committee were no longer on staff, so a new group was struck. Hence, the 1987 CR evaluation results were not used in the Commission's final investigation process. (ii) Commission's 1991 Job Evaluations [374] A new set of job evaluations was undertaken by the Commission staff in 1991 for use in its Final Investigation Stage. These involved 93 CR positions (reduced by the Commission from the original 194) and 10 `generic' PO jobs. The possible use of the evolving System One job evaluation plan was considered by the Commission but discarded in favour of the off-the-shelf Hay XYZ Job Evaluation Plan. How were the job evaluations of the sample of 93 CR positions and 10 "generic" PO jobs actually conducted in 1991? [375] The Commission evaluation work was now to be a comparison between the sampled CR positions and 10 `generic' PO jobs, the creation of which had resulted, essentially, from the inability of the Commission and Canada Post to agree on sample sizes and data collection instruments for the comparator PO positions. The Commission had consulted Statistics Canada and received its recommendation concerning stratified random sampling of the PO community, comprising internal, external and supervisory sub-groups, and had planned to proceed using the Job Fact Sheet questionnaire. Canada Post, however, would not allow PO incumbents to complete the Job Fact Sheet on company time. The union representing the PO's would not allow their membership to participate in "after hours" unpaid work. As a result, the Commission opted to use the information made available to them by Canada Post, and, using that information, created a grouping of `generic' PO job categories - covering both internal and external operational functions, but excluding the PO supervisors. The 10 `generic' jobs were, therefore, not actual positions but represented the ten mostly homogeneous jobs done by PO incumbents. [376] The creation of the 10 `generic' PO jobs involved the dropping, by the Commission, of the PO supervisors subgroup (PO-SUP). This was a significant action as the PO-SUP subgroup represented 6 different levels of supervision with a large number of job titles. Many of the titles occurred at more than one level, making it difficult to reconcile them into `job specifications' without a sampling of incumbents and use of a Job Fact Sheet, or questionnaire. With the Commission's decision to move to the 10 `generic' PO jobs, it was considered too onerous and delaying to sort out the PO-SUP situation with Canada Post. While the Alliance was consulted, Canada Post was only advised of this decision. One important result was an inconsistency with the CR sample. That sample included supervisors at the CR-5 level. [377] Commission staff received a short period of training in the use of the standard XYZ Hay Plan from a senior manager at Hay Canada, Mr. Roger Childerhose. After the training period, the Commission's senior investigator and one other senior officer began evaluating, individually, 16 positions which they pronounced to be Benchmark positions (10 CR positions and 6 `generic' PO jobs). This new evaluation work began in July 1991. They then jointly reviewed and "sore-thumbed" all 16, and periodically consulted with the Commission's Director - Pay Equity, Mr. Paul Durber. The two officers continued to re-evaluate CR-2's and CR-3's, intending to re-evaluate all of the original sample of 194 CR's and to evaluate the 10 PO "generics". The senior investigator was called off the job to handle other priorities, and the second officer continued on her own. She was subsequently joined by another officer plus an outside consultant. All three then rated batches of CR and `generic' PO jobs individually, followed by periodic informal joint review and "sore-thumbing". This "team" was of mixed gender. [378] By September 1991, partway through the re-evaluations of the CR's, the officer-in-charge was asked to reduce the original sample of 194 CR's to a more workable number. After studying this situation, she proposed a revised level of 93 which was accepted by the Commission as the new sample. [379] The Commission's evaluators used the off-the-shelf Hay XYZ Evaluation Plan for both the 93 CR and the 10 PO positions/jobs. It was this Plan which was the basis for their training session with the Hay organization. The sources of job information for the CR's was essentially the same as used in the 1987 evaluations - the relevant 1986 Job Fact Sheets and supporting job descriptions, organization charts and Interview Guides. For the `generic' PO jobs, data was drawn from `job specifications', which the Commission had compiled from information provided by Canada Post management, in 1990 and 1991, as well as from job descriptions and job profiles, also furnished by Canada Post. [380] As with the 1987 evaluations, the Commission used the completed Job Fact Sheet as its primary source of job information for the 93 CR evaluations. For the PO evaluations, the `job specifications' were regarded as the primary source. [381] It was, therefore, upon these evaluations of 93 CR positions and 10 `generic' PO jobs, which were completed by November 1991, that the Commission based its investigation findings. These, in turn, led to the conclusions of the Commission's Final Investigation Report of January 1992, including the recommendation that the Complaint be sent to the Canadian Human Rights Tribunal for a hearing. F. Review Of Job Information Collected And Methodology Used: Tribunal Stage (i) The Professional Team [382] Early in 1993, with the Tribunal's proceedings well underway, the Alliance engaged a three-person team of professional job evaluators (hereinafter called the `Professional Team') to provide an expert review of the Commission's 1991 evaluations of 93 CR positions and 10 `generic' PO jobs, and to undertake independent evaluations. The Professional Team was comprised of the following persons: Dr. Bernard Ingster has engaged in a consulting practice in human resources matters since 1967, including job classification and evaluation. During an early part of his career, he served as Director of Services, Hay Associates, Philadelphia, and between 1971 and 1977 he had an independent affiliation with Hay while working with clients. Since 1977, Dr. Ingster has operated as an independent consultant in fields such as organization and job structure analysis and design, compensation systems, performance assessment practices and job evaluation plan development. His clients have ranged from industrial companies to public health facilities to educational institutions and law firms. Dr. Ingster earned his doctorate at Rutgers University after acquiring degrees at LaSalle College (Philadelphia) and Temple University. Dr. Martin G. Wolf obtained his Bachelor of Science and Master of Science degrees in 1958 and 1959 respectively from the University of North Texas, majoring in Psychology. He earned his Ph.D. in 1964 from Case Western Reserve University, Cleveland, primarily in clinical psychology with a minor in industrial psychology. Dr. Wolf began his career with the IBM Corporation in the field of personnel administration and then spent time in the late 1960's with a management consulting firm dealing with the improvement of employee training programs and human resources policies and procedures. He subsequently spent time as a Management Psychologist analysing knowledge, skills and abilities requirements of positions. In the early 1970's he became self employed as a management consultant in Cleveland specializing in sales training programs, executive searches and computerized tracking systems. Dr. Wolf joined Hay Management Consultants in 1974 serving at their Pittsburgh facility until 1981, and then at their Philadelphia site until 1989. During his Hay career he worked extensively with a variety of clients in developing job evaluation, performance enhancement and compensation systems. His last position at Hay was as Corporate Director, Technology Development. Dr. Wolf founded his own consulting operation in 1989 - MAS Management Advisory Services Inc. and was still active in that organization when he appeared before the Tribunal. Areas of emphasis for his company have been the development and implementation of computer-supported job evaluation, salary administration and performance enhancement systems as well as conducting change management projects. Dr. Wolf appeared before the Tribunal as spokesperson for the Professional Team and testified that he had spent 30 years in job evaluation including about 20 years working with the Hay process. He had served as a "correlator" at Hay - a "keeper of the flame" role in maintaining the integrity of the Hay system. He estimated that he had evaluated "slightly upwards of 10,000" jobs using the Hay process, including office clerical, and payroll systems jobs, and, in his early days, some blue collar jobs. He was qualified by the Tribunal as an expert in Hay-based job evaluation and Hay-based compensation. Ms. Judith Davidson-Palmer, President, EEO Associates, consultants on equity issues, including organizational development and change, and pay and employment equity issues. From 1982 to 1985, Ms. Davidson-Palmer served as National Director - Management and Organization Development, Canada Post Corporation, at its Head Office. She is a graduate of Mount Allison University and obtained her Master of Arts in Psychology from Queen's University. [383] The Alliance's evidence indicated that, before the Professional Team came together, Dr. Ingster had spent a week with Alliance representatives reviewing the job content materials that the Commission had used for its evaluations. This included copies of completed Job Fact Sheets, position descriptions and Interview Guides. Dr. Ingster concluded that the available documentation could be used for job evaluation purposes by a committee of professionals. [384] Dr. Ingster was asked to provide "an expert review of the evaluations of 93 Clerical and Regulatory positions and 10 PO jobs that had been developed by the Canadian Human Rights Commission".121 The Professional Team, as a whole, was then asked to "apply the Hay Method to the job content in accordance with the `best practices' of senior level Hay consultants considered to be expert in the use of the process".122 (ii) Phases 1 and 2 [385] The Team undertook its task in two phases, as follows: Phase 1 involved the re-evaluation of the Commission's 1991 sample of 93 CR positions and of the 10 `generic' PO jobs; this was tackled in May/June 1993. Phase 2 involved the evaluation of a further 101 CR positions which was undertaken in November/December 1994. This number represented the remaining balance from the Commission's original 1987 sample of 194 (194 less 93). Subsequently, 4 positions for which the Professional Team felt there was inadequate data were deleted for a revised total of 97 additional CR positions, and a grand total of 190 CR positions evaluated. [386] The Professional Team called the job evaluation methodology it employed in undertaking its evaluations the Hay factor comparison approach or "the classic Hay Standard". Dr. Ingster indicated that this was an application of the Hay Method "in strict accord with its factor comparison origins".123 Dr. Wolf defined this as the approach that was originally designed by the Hay organization where one assesses the content of each job against the structure of factors provided in the Hay Plan as know-how, problem solving, accountability and working conditions. One compares progressively each job, factor-by-factor, to the next and subsequent jobs. This methodology has also been referred to as a job-to-job comparison of total job content on a factor-by-factor basis. Since the Team considered the working conditions factor to be the least developed of the Hay Plan factors, it created a more elaborate working conditions guide chart for use in this set of evaluations. [387] What were the principal sources of job information for the Professional Team's evaluations in each of Phase 1 and Phase 2? The Alliance supplied the Professional Team with the following materials from which to draw information: Phase 1- 93 CR's (May/June 1993) the relevant 1986 completed Job Fact Sheets job descriptions attached to the 1986 Job Fact Sheets organization charts attached to the 1986 Job Fact Sheets the relevant 1986 completed Interview Guides the Commission's Rationale Statements from its 1991 evaluations, which was usually a single-sheet summary listing of the principal duties and features of each position evaluated, factor by factor, and of the evaluators' ratings and scores, and reasoning behind them, also by factor the Professional Team also had access to their own notes, created during telephone interviews which the Team had made in May 1993 with CR incumbents. Phase 1 - 10 PO `Generics' (May/June 1993) `job specifications' compiled by the Commission based on data obtained from Canada Post in 1990 and 1991 job descriptions obtained by the Commission from Canada Post in 1990 and 1991 profiles describing characteristics of a number of PO jobs obtained by the Commission from Canada Post behavioural dimensions obtained by the Commission from Canada Post the Commission's Rationale Statements from its 1991 evaluations a variety of Canada Post manuals, handbooks, forms, and training materials. Phase 2 - 101 CR's (November/December 1994) the relevant 1986 completed Job Fact Sheets job descriptions attached to the 1986 Job Fact Sheets organization charts attached to the 1986 Job Fact Sheets the relevant 1986 completed Interview Guides the Professional Team also used their evaluations of the 93 CR positions in Phase 1 to serve as Reference Positions in evaluating the 101 (eventually 97) CR positions in Phase 2, because of the overlap in position content the Team also had access to their own notes, created during telephone interviews with incumbents, made by the Team in September 1994. [388] The primary source of job information for the CR's was the position descriptions. These were accepted as received. The primary source of job information for the `generic' PO jobs was the `job specification' created by the Commission for each of the 10 `generic' PO jobs. (iii) How were the Job Evaluations conducted by the Professional Team? [389] Phase 1: The Professional Team began by meeting in Ottawa in May 1993 to conduct telephone interviews with the 93 CR incumbents of Phase 1. All three Team members participated in the interviews by conference call, with one member taking the lead in conducting and preparing notes on the interview. Dr. Ingster had allocated the list of 93 incumbents three-ways, so each Team member took the lead for one-third of the calls. [390] A major purpose of these telephone interviews was to seek additional information about the work environment of the position occupied by each interviewee. This was done because, in the opinion of the Team, the working conditions factor was the least well-documented aspect of the 1986 Job Fact Sheet and other materials the Team had at hand. A second reason was to enable Team members to ask questions they might have from their earlier scanning of the job materials. Interviewees had been alerted to the calls and had before them copies of the relevant Job Fact Sheet and supporting documents. Each was being asked about his or her position as it existed in 1986. [391] All CR incumbents reached by telephone were interviewed. For some who could not be reached, employees who had occupied the same position in the past, or employees currently occupying a related position might stand-in for the actual 1986 incumbent. Occasionally, the appropriate supervisor might respond. Actual numbers of such stand-ins are not known. Of the total of 93 possible telephone interviews, however, it is known that 59 were completed. [392] Following the Phase 1 telephone interviews, the Professional Team met, in May/June 1993, in Philadelphia, to undertake the evaluation of the 93 CR positions and the 10 PO `generic' jobs. Dr. Ingster served as chair. The Team set a target of evaluating between 10 and 11 jobs per day over a 10-day period. Each member of the Team had received the job information materials earlier. [393] The assembled members began by arranging the job information in ascending order of the total job evaluation points that had been assigned by the Commission's evaluation team in their evaluations of 93 CR positions and 10 `generic' PO jobs in 1991; this information came from the Commission's Rationale Statement. An identifying number from 1 to 103 was then assigned to this resulting order of positions/jobs. [394] Normally, each job was discussed before starting the evaluation process. This was done to clarify any questions Team members might have had or to highlight a particular aspect of the job concerned. The Team then proceeded to assess the job content and to assign a rating for each Hay factor and, progressively, to compare those ratings on a job-to-job basis. In most cases, there was eventually unanimity of the three members in reaching agreement on individual factor ratings. As a minimum, a consensus of two could prevail but never by just a simple vote, only after discussion. [395] At the start of each day, the members reviewed their decisions and ratings of the previous day, referring to their respective notes. This was to ensure accuracy in their joint recording of the previous day's work. Dr. Wolf did not make notes, but inputted the factor and sub-factor ratings into the computer, during the rating process. [396] Phase 2: The three Team members attempted to conduct telephone interviews with the 97 CR incumbents of Phase 2. This was done in a similar manner to that described above for Phase 1. These interview contacts were attempted from Ottawa in September 1994. Of the total of 97 possible telephone interviews, 55 were completed. [397] Following the Phase 2 telephone interviews, the Team met in November/December 1994, in Philadelphia, to undertake the evaluation of the 97 CR positions. Again, Dr. Ingster served as chair. The Team set a target to evaluate about 10 jobs per day over a 10-day period; it actually took 9 days. The same evaluation process as described above for Phase 1 was followed by the Team, with one difference - the full set of 93 evaluated positions of Phase 1 was used as Reference Positions. A `Reference Position' has important job content characteristics which are useful for comparison with an unevaluated position. Given the similarity in positions content between the Phase 1 and Phase 2 sampled CR positions, the Phase 1 positions made suitable Reference Positions for the Phase 2 evaluations. [398] It is usual practice for those completing job evaluations to prepare, for record purposes, a statement of the reasoning that went into the Evaluation Plan used, the process followed, and the ratings reached, factor-by-factor. In the case of the Commission, this was achieved through its "Rationale Statement". In the case of the Professional Team, it was by means of an "Audit Trail". An Audit Trail was included in the Professional Team's Report to the Alliance covering its evaluations in Phases 1 and 2. (iv) Two Additional Reviews [399] The Professional Team was asked to participate in two additional exercises with possible impact on its earlier evaluations (Phases 1 and 2). The first, which occurred in June 1997, was to review a number of newly found job documents. These documents had been misplaced when the Commission moved its office space; they were found in the spring of 1997. The found documents included items such as several previously missing job descriptions, more legible photocopies, and clarification of French translations. The documentation affected 89 of the 190 CR positions which had been evaluated in Phases 1 and 2. [400] The question to be answered by the Team was whether the newly found material would have had any effect on the earlier evaluations had it been available when those evaluations were being done. It was addressed by only one Team member, Dr. Wolf. His conclusion was that, with one possible minor exception, nothing significant had been added to the original job information. The new material simply served to confirm the Team's previous evaluation results. [401] The second exercise was completed after the Alliance, in June 2000, requested that the Professional Team review the evidence of a number of Canada Post witnesses who had appeared before the Tribunal since Dr. Wolf's last testimony. This involved about 4,000 pages of written material, including transcripts for about 70 days of testimony and cross-examination, and supporting documents, manuals and related material regarding job content. These documents dealt with the PO jobs, primarily. The Alliance had requested this review to determine what impact the additional evidence presented by Canada Post might have had on the Team's 1993 and 1994 evaluations of CR positions and PO jobs. [402] The Professional Team's Report concerning the Respondent's voluminous evidence was entered as Reply evidence. Before the group convened to consider the Respondent's evidence, Dr. Wolf read through the transcripts of testimony from all 70 days and through the supporting material. The Team gave him the task to assess the new material's potential usefulness for job evaluation purposes. He screened on the basis of three criteria - relevance, appropriateness and duplication. This resulted in some 36 days of testimony evidence and associated material on which he directed his two colleagues to focus. The three Team members then met and jointly conducted their review over a 5-day period. [403] After a careful study of the lengthy screened material, it became clear to the Team that the actual work performed by an incumbent of any one of the 10 `generic' PO jobs could vary widely depending on location. The Team determined that the evidence demonstrated the following: "the use of a single generic description for each of these 10 jobs results in a document that probably describes accurately few, if any, of the many incumbents of these multi-faceted jobs", and "all of the 10 PO jobs appear to reflect an amalgam of sub-jobs, some of which might fall at different Hay evaluation levels, based on the actual task mix at various locations".124 [404] Faced with this finding, the Team indicated that, in fairness to the job evaluation process, it chose to give the benefit of the doubt to the PO jobs and to assess each based on what appeared to be the highest level of tasks commonly performed by an incumbent of that job. The Team examined all 10 `generic' jobs and compared them against similarly levelled CR positions using the Hay factor comparison approach. Members asked themselves whether, as a result of the additional evidence, they now had a different understanding of the jobs than what they had originally. [405] The Team found that much of the new information provided by Canada Post's witnesses was not relevant to job evaluation. In particular, the Team concluded that none of its original CR position evaluations were affected by the additional evidence. In fact, Dr. Wolf testified that he did not revisit, during the June 2000 exercise, the 1993/1994 CR evaluations, having accepted them as a given.125 The Team did, however, acknowledge that the new evidence confirmed that the range of variation in individual incumbent duties for the 10 `generic' PO jobs was much greater than the Team had originally understood it to be. [406] Few changes in total evaluation scores resulted from this review. Of the 10 PO jobs, five were completely unchanged and three had changes of three points or less. Two jobs, however, changed significantly, one of which increased and one of which decreased in total evaluation value. G. Reliability of Job Information Collected, Methodology Used and Job Evaluations conducted by the Commission and the Professional Team: - Positions of the Professional Team, Canada Post, the Alliance and the Commission (i) The Standard of Reliability [407] Having focused on how the job information was collected, processed and used for evaluation purposes, it is now appropriate to consider the reliability of the job information, the methodology and the evaluations performed by both the Commission and the Professional Team. [408] What standard of reliability should the Tribunal use? While all three parties in this Complaint have agreed that they are not seeking perfection, per se, it is necessary to determine what is an acceptable reliability standard in the context of this particular "pay equity" situation. [409] The decision of the tribunal in the Treasury Board case, which rules out any absolute standard of correctness, is of assistance in this regard: What is apparent from these comments and from the nature of the subject is that equal pay for work of equal value is a goal to be striven for which cannot be measured precisely and which ought not to be subjected to any absolute standard of correctness. Moreover, gender neutrality in an absolute sense is probably unattainable in an imperfect world and one should therefore be satisfied with reasonably accurate results based on what is, according to one's good sense, a fair and equitable resolution of any discriminatory differentiation between wages paid to males and wages paid to females for doing work of equal value.126 [410] Also, Mr. Justice Evans' decision of October 1999 supports a flexible case-by-case approach to the determination of how the concept of equal pay for work of equal value is to be effected, as follows: In short, the correct interpretation of section 11 in my opinion is that Parliament intended to confer on the agencies created to administer the Act a margin of appreciation in determining on a case-by-case basis, and with the assistance of technical expertise available, how the statutorily endorsed principle of equal pay for work of equal value is to be given effect in any given employment setting.127 [411] Finally, Mr. Justice Hugessen's decision of June 1996 in the Department of National Defence case, reiterates the civil burden of proof required of a complainant as being the balance of probabilities which is "...a long way from certainty...": The burden which a complainant before a Human Rights Tribunal must carry cannot, in my opinion, be placed any higher than the ordinary civil burden of the balance of probabilities. That is a long way from certainty and simply means that the complainant must show that his position is more likely than not.128 [412] These rulings support a call for a standard of reasonableness, there being no such thing as absolute reliability. The application of such a standard will depend very much on the context of the situation under examination. The issue is, then, given all the circumstances of the case before this Tribunal, is it more likely than not that the job information, from its various sources, the evaluation system and the process employed, and the resulting evaluations are, despite any weaknesses, sufficiently adequate to enable a fair and reasonable conclusion to be reached, as to whether or not, under section 11 of the Act, there were differences in wages for work of equal value, between the complainant and comparator employees concerned? [413] Focusing specifically on the job information and data used in this case, a further means of determining whether they are reasonably reliable is to test them against a generally accepted practice of the job evaluation industry. That is the industry's objective of seeking, to the extent possible, accuracy, consistency and completeness in job information being used for job evaluation purposes. Accuracy calls for the data to be correct. Consistency recognizes the need for the same kind of information and generally the same level of detail and quality across all jobs being evaluated. Completeness relates to ensuring that important information about a job is not missed and that the collected data is compatible with the job evaluation plan being used. [414] A very important factor affecting the Tribunal's judgement about the reasonable reliability of the job information collected, the methodology employed and the evaluation of jobs/positions, is the evidence provided by a number of expert witnesses. Equally important, is the fact that several of these expert witnesses significantly disagreed with, and even sometimes contradicted, each other. [415] Under these circumstances, the Tribunal found it helpful to examine the evidence of these particular expert witnesses in a very systematic manner to ensure consistency and fairness of treatment. [416] In compiling the elements that should comprise the systematic approach, the Tribunal was influenced by two recent Court decisions. [417] The first is a reference, in a Federal Court of Appeal decision dated April 5, 2004, to a discussion of the notion of witness credibility in the reasons offered by O'Halloran, J.A. in Faryna v. Chorny, [1952] 2 D.L.R. 354 at 356-357 (B.C.C.A.): ...the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.129 [418] The second is a reference in a Federal Court decision dated April 14, 2004, to a discussion of the duties and responsibilities of an expert witness in the reasons offered by Cresswell, J. in National Justice Compania Riviera S.A. v. Prudential Assurance Co. Ltd. ("the Ikarian Reefer"), [1993] 2 Lloyd's Rep. 68 at 81: ...expert evidence presented to the Court should be, and should be seen to be, an independent product of the expert uninfluenced as to form or content by the exigencies of litigation. The expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his or her expertise.130 [419] The systematic approach that the Tribunal applied in examining the evidence of the expert witnesses concerned was as follows: What is the expert qualified to give evidence about, and what Party is calling the expert witness? What is the expert's mandate? What is the extent of the expert's knowledge and experience, and his or her standing in the field of expertise concerned? How did the expert fulfill his or her mandate? What conclusions did the expert reach? How did the expert present his or her conclusions to the Tribunal? What weight does the Tribunal give to the conclusions of the expert? [420] It is, therefore, time to test for this standard of reasonableness of reliability with the job evaluation undertakings of the Commission and the Professional Team. (ii) Commission's 1987 Job Evaluations [421] While the 1987 CR evaluation results were not used in the Commission's Final Investigation process, it is, nonetheless, particularly pertinent to test the reliability of the 1986 instruments and resulting job information, since much of that information and data were employed in the succeeding evaluations. [422] The Job Fact Sheet or Questionnaire, while completed in 1986 by only a sampling of CR incumbents, was originally planned for use by both CR and PO employees. It was clearly intended to be the most important source of up-to-date job information. In fact, the Commission chose it as its primary source for its 1987 CR evaluations. Yet, according to Canada Post, the design and content of the Job Fact Sheet were seriously flawed. Canada Post indicated both in its submissions to the Tribunal and to the Commission, at the time, that the Job Fact Sheet was self-evaluative in design, a feature considered quite unacceptable for job evaluation purposes. When it made its objections to the Commission, Canada Post proposed major changes and even offered its own design but the Commission declined both options, and chose to carry on with its own format. Moreover, the Job Fact Sheet was designed to relate to the System One evaluation scheme. This evaluation scheme was neither fully developed nor was its use entirely acceptable, at the time, to the Alliance and to Canada Post. [423] The Job Fact Sheet did not meet the Commission's subsequent model which stated that a Questionnaire "...must be carefully designed and tested, possibly through a pilot study...".131 The Job Fact Sheet was designed and developed by a senior Commission employee under pressure of time and human resources constraints, and without professional assistance. The formulation of pertinent questions and their order and style of presentation in a crucial survey document to be presented to employees working in a large, busy and dynamic organization with a long history of sensitive labour relations, such as Canada Post, required appropriate professional expertise. The Job Fact Sheet was not the product of such expertise. [424] Certainly, the Job Fact Sheet was neither designed nor tested by an independent, professional body. All four persons who `tested' the questionnaire were clerical/secretarial workers. No PO-type workers were involved. The results of the test were checked by the lead investigator, who found that the four involved in the testing of the questionnaire had frequently over-rated their respective jobs on a number of factors. This led to some changes in the document but the revised final version was never re-tested. [425] Two other instruments, considered important job information sources, were job descriptions and organization charts, both of which were to be attached to the Job Fact Sheet by each CR incumbent who completed it. As Canada Post had warned, many of the job descriptions were out-of-date, some dated well before 1986. Indeed, a number were missing, some were "unofficial", and others bore no signature of approval. Additionally, the Alliance was not satisfied that all the job descriptions had been union-endorsed, an accepted right of the union concerned. An almost similar situation prevailed with regard to the organization charts. They were of varying ages, and some were missing. [426] The Interview Guide, intended to assist the Commission's investigator in subsequently conducting interviews with employees and to record their responses, elicited reservations about its design and use from both the Alliance and Canada Post. These concerns were never fully resolved. It was, like the Job Fact Sheet, designed around the System One evaluation plan. [427] Canada Post proposed several major changes in the format of the Interview Guide. The Commission chose not to make the proposed changes. [428] The Alliance, through one of its representatives, had observed the use of the Interview Guide in four of the initial run of interviews and had, as a result, proposed several modifications to improve it. Only a few of these modifications were accepted by the Commission. This decision to accept changes to the Interview Guide was reached after Commission staff had begun to use the original version. Hence, the changes in the document were made in the midst of its use which is not a recommended action in job evaluation circles. [429] Furthermore, the Commission's lead investigator testified that the Commission normally used an Interview Guide selectively with employee respondents where it was necessary to clear up inconsistencies or other difficulties with responses provided in particular Job Fact Sheets. In this case, the Commission, for reasons unknown to the lead investigator who was not in its employ at this time in the evaluation process, chose to attempt to interview the entire CR sample. [430] Another factor which caused some consternation was the origin of the CR sample size. A Commission senior staff member had developed a random stratified sample without prior professional input. His sample calculations went through a number of configurations with extra "alternates", but only 194 acceptable Job Fact Sheet responses were received. This became the number of CR positions that were eventually evaluated. Statistics Canada, who was consulted subsequently by the Commission, recommended that the sample size be augmented. This suggestion was not implemented by the Commission. [431] Finally, the process followed by the Commission Evaluation Team was somewhat unusual. Three of the Team's members rotated as evaluators. There was little evidence presented concerning the extent of the job evaluation training given to these Commission evaluators, or their individual experience as job evaluators. (iii) Commission's 1991 Job Evaluations [432] As already noted, the Commission relied on its 1991 evaluations of 93 CR positions and 10 `generic' PO jobs as the basis for reaching its Final Investigation conclusions, and recommendations. The Commission had stated that it would be using the Hay System with its four-factor approach and its XYZ charts to establish value. The Commission was of the view that this Hay version was "...quite capable of measuring `blue collar' and office-environment jobs".132 [433] Neither Canada Post nor the Alliance were in full harmony with the Commission's use, in 1991, of the Hay Job Evaluation Plan. Canada Post, in particular, felt that the Hay Plan was intended, primarily, for "white collar" and management-type work. [434] Interestingly, Dr. Wolf, in answering a question from counsel for the Alliance, referred to the evaluation methodology used by the Commission, as follows: Essentially, what the Human Rights Commission evaluators did was to create their own evaluation methodology ... they explicitly said that they were not using anything like traditional Hay methodology. They said they were using an `equal value' approach to job evaluation ... I don't know what you would call what they did, but it was not the Hay process.133 [435] There was also a certain incompatibility in the use of the Hay Plan with a Job Fact Sheet that had been designed to relate to the System One plan. However, System One, incomplete as it might have been, was said to be closely aligned to the Hay Plan. It had four factors for assessing the value of work, as does the Hay Plan. Both plans were considered by the Alliance to be weaker for PO employees than they should be with respect to the working conditions factor. [436] As with the 1987 evaluations, the Job Fact Sheet was used by the Commission as its primary source of job data for the 1991 CR evaluations. In contrast, the primary source for the PO evaluations was the `job specifications' compiled by the Commission. The resulting comparison between complainant CR positions occupied by particular incumbents with the comparator `generic' PO jobs can be faulted as not being a proper comparison, given that the generic jobs were not actual positions, with incumbents. This is one example of the inconsistent treatment which the job information imposed upon any evaluation team attempting to evaluate these particular positions/jobs in a "pay equity" context. [437] The reduction in the CR sample from 194 in 1987 to 93 in 1991 seemed to be prompted by the need to speed up the evaluation process. Calculation of the revised sample of 93 was handled by one of the Commission's evaluators, an obviously well intentioned employee, but not a sampling expert. There is even a suspicion that the sample of 93 may be unfairly weighted. This suspicion arises because all 10 CR benchmarks which were developed at the start of the 1991 evaluations, and all CR positions in Canada Post's Head Office, are understood to have been automatically included in the "sample" of 93. This belies any suggestion that the sample of 93 was randomly selected. [438] The Commission's 1991 evaluations were not conducted within the confines of the Commission's recommended committee structure. Commission staff evaluated individually, and came together periodically to compare ratings. [439] Mr. Paul Durber of the Commission, indicated in his evidence to the Tribunal in June 1993 that he thought the evaluation process followed by the Commission in 1991 fell between a minimum and an ideal process, where the ideal would be a joint employer/employee study.134 While he was "satisfied with the quality and consistency of the product" of the evaluations, Mr. Durber indicated that the evaluating team was not "...an orthodox committee...". For one thing, its process "...was something of a departure ... [as] normally the Commission had followed - always as far as [he knew], for group cases - had followed a strict committee approach...". By `orthodox', Mr. Durber indicated that he meant a committee structure where all its members come together, with their individual ratings and, by a process of consensus building, jointly reach a mutually acceptable conclusion. This was missing in the Commission's committee where its members worked individually, coming together to exchange ratings. (iv) Professional Team's 1993/1994 Job Evaluations [440] The Alliance and the Commission have chosen to rely exclusively on the evaluations performed in 1993/1994 by the Professional Team in attempting to substantiate the Complaint before this Tribunal. A number of changes in evaluation scores made in June 2000 have revised the Team's original evaluation values. [441] At least two members of the Professional Team were extremely comfortable with the Hay Evaluation Plan, and with using it to conduct the evaluations for this Tribunal hearing. Both Dr. Wolf and Dr. Ingster had spent considerable time in the Hay organization and had worked over many years with clients using the Hay Plan. Moreover, in the interest of thoroughness, the Team applied what it termed the factor comparison, or classic Hay Standard, which it considered to be a more diligent, time-consuming approach than the "fast track" Hay guide chart options. [442] Dr. Wolf, spokesperson for the Professional Team, and accepted as an expert in Hay-based job evaluation, indicated that it was his opinion that the Hay Plan was generally regarded as being capable of measuring the relative value of male-predominant and female-predominant jobs. Additionally, the Hay Plan's factors measured work value based on a composite of skill, effort, responsibility and working conditions, as required by the Act. [443] Questions continued to be raised, however, concerning the suitability of the Hay Plan for use with clerical and `blue-collar' jobs, given its current widely known use for evaluation of management-level work. This was certainly a concern of the Alliance, as well as of Canada Post. Dr. Wolf stated that the Hay Plan, in its earliest days, had been used in the evaluation of `blue collar' work but, in more recent times, client demand had been increasingly in the management area. While Dr. Wolf did admit that most of Hay's job evaluation is now with supervisory, management, and professional jobs, he and his two colleagues felt it was quite adaptable to both `blue collar' and clerical jobs.135 This opinion was especially true, he indicated, when one was dealing with evaluators experienced in applying Hay. In addition, the expansion of the Hay working conditions factor, by the Team, was illustrative of its adaptability. [444] While the Hay Plan may be considered an acceptable one for use in these evaluations - particularly in the hands of the well-qualified Professional Team - the sources of much of the data used raise many questions. The Job Fact Sheet, intended, when first designed, to serve as the primary source of up-to-date job information, proved to be entirely unacceptable as noted earlier. Indeed, so unreliable did the Professional Team consider the Job Fact Sheet that the Team largely discarded it and used the job descriptions as its primary document for its CR evaluations. [445] Perhaps the most telling comment about the Job Fact Sheet was that of Dr. Wolf himself. He testified before the Tribunal in April 1995, as follows: The job documents that were done by the Canadian Human Rights Commission required an awful lot of interpretation because the form they used was abominable. The guy who developed it probably should be taken out and shot. It violated the basic rule of any job documentation process which is that you ask individuals to describe the jobs, not evaluate them. The way it was structured ... asking people to self-evaluate. So we disregarded that totally because people can't evaluate their own jobs because they don't understand the process.136 [446] In addition to its `abominable' structure, the Job Fact Sheet was designed, as noted earlier, to relate to the System One plan. There would seem to be potential conflict in using job information, even in a less than primary role, provided by means of an instrument based on an evaluation plan different from the one being used for the evaluations. The Commission's model stresses that "... use of a single plan to evaluate all jobs is essential".137 [447] Use of the job descriptions as the primary document for the CR evaluations posed its own problem. Dr. Wolf testified that the Team had accepted the job descriptions as they were, provided they were in correct Canada Post format, on the assumption that they had been the basis of Canada Post's classification of those positions. [448] Unfortunately, there was not a consistently compatible quality set of job descriptions for the Phase 1 and Phase 2 CR evaluations, including no standard format of presentation. As already noted, the job descriptions were of varying ages. Some went back many years. Others were not considered by the Alliance to be "official" versions, even though they were more current in age. A number were missing. Dr. Wolf acknowledged in cross-examination that 14 were missing from Phase 1, and 11 from Phase 2 evaluations. Subsequently, in June 1997, one of the missing CR job descriptions for Phase 1 was found, and three were found for Phase 2. Additionally, 5 available job descriptions were considered to be inconsistent with the Job Fact Sheet, and, therefore, were not used. There were even examples of missing pages from some job descriptions. Some 50-job descriptions were not signed or dated. Finally, the job descriptions did not generally include information on working conditions. These deficiencies raise the issue of the consistency, completeness and accuracy of that aspect of the job data. [449] These problems seriously damaged the credibility of many of the job descriptions, especially in their role for the Professional Team as the primary source of CR job information. Even the Commission's model recognized that job descriptions are not always an up-to-date and accurate reflection of work done and often replicate prevailing stereotypes in the workplace, and should not be used as the primary source of data. [450] The matter of sample size of a total job population is a factor which generally requires professional expertise. In this case, a random sample of CR positions should be of sufficient size that it can, with some degree of confidence, be characterized as representative of all the work undertaken by the total CR population. Adding or deleting from the sample size may impact on the average value of work within both the sample and the total population. The same is true of a stratified random sample, an example of which is the Commission's breakdown of the total 194 CR positions into individual samples for each of the CR-2, 3, 4, and 5 levels. [451] The development in 1986 of the original CR sample size and the subsequent "re-calculations" culminating in the final sample size of 194 was a non-professional process which was further discredited by the reduction to 93 in 1991. The Professional Team did restore that reduced sample almost to its original level by evaluating a further 97 CR positions. Expert witnesses for Canada Post and for the Alliance gave evidence concerning how representative these samples were of the total CR population. [452] Canada Post called a witness, Dr. David Bellhouse, who first appeared before the Tribunal in January 1996. [453] Dr. Bellhouse attended as Professor of Statistics at the University of Western Ontario. He was also Chair of the Department of Statistical and Actuarial Sciences, having held that office since July 1992. He obtained bachelors and masters degrees at the University of Manitoba, and earned his doctorate at the University of Waterloo in 1975. His PhD dissertation was entitled "Some results in sampling from a finite population under superpopulation models, 1975". Dr. Bellhouse began his academic career in 1974 as Assistant Professor - Department of Statistics, University of Manitoba. He later joined the University of Western Ontario and moved through the ranks of Assistant Professor, Associate Professor (with tenure) and full professorship. As Chair of his department, he serves as Director of its Statistical Laboratory which undertakes the design and execution of statistical research and surveys for others on a cost-recovery basis. He estimated his research-teaching-administrative workload as being 40-20-40. Dr. Bellhouse has had many papers published in refereed (peer reviewed) journals in his field of expertise. He has identified some 40 such papers involving subjects such as sampling techniques and statistical modelling and analysis. In 1985, Dr. Bellhouse received his University's Gold Medal for Excellence in Teaching. Grants-in-aid-of-Research have been awarded annually, since 1976-77, by the Natural Sciences and Engineering Research Council in support of Dr. Bellhouse's undertakings. He is a Fellow of the American Statistical Association, his Fellowship having been awarded on the basis of his research in survey sampling. He is also an elected member of the International Statistical Institute. [454] Dr. Bellhouse was recognized by the Tribunal as an expert in statistics, with specialization in survey sampling [survey sampling comprises data collection and data analysis]. He noted that when one wishes to have individual information about all units of a population, one requires a census of all those units because "the technique of random sample selection alone ... cannot provide any information on units which are not in the sample".138 Dr. Bellhouse indicated in his Report that, in line with Dr. Wolf's agreement that the purpose of job evaluation is "to try to compensate each position in accordance with its value"139, one must use a complete census rather than a sample of any kind, as "job evaluations of any sampled positions do not provide any information on the other positions which have not been sampled".140 [455] If, however, sampling is to be used, Dr. Bellhouse emphasized the scientific nature of this instrument, with the need for strict guidelines in order to avoid bias and to reach conclusions which would be useful for evaluation purposes. Amongst his conclusions concerning the sampling performed by the Commission, Dr. Bellhouse found that the initial sampling was an appropriate method to discover whether or not the current assignment of positions to the CR classification levels created for use by federal government departments, and then used by Canada Post, conformed to the non-overlapping intervals of points in the Hay Plan. [456] He went on to indicate that when it became obvious that CR classification levels were comprised of overlapping intervals of Hay Plan points, a census of all positions was necessary so that each and every position (or job) would be given a value through the job evaluation process. [457] Dr. Bellhouse concluded that, even if it were appropriate for use in evaluation, the Commission's original 1986 sampling design for the CR population was flawed in that it followed employees rather than positions. He considered that this choice of sampling employees rather than positions "led to biases in the survey in the sense that there are positions that you are not able to sample".141 He went on to conclude that these biases were compounded by a level of non-responses in the survey for which corrective follow-up action was not taken. [458] Dr. Bellhouse's conclusion concerning the PO occupational group was that since there was no "probability sample" of this occupational group, there was no valid sampling estimate of the average job evaluation value for each PO level. Indeed, because the job value by levels was measured differently for the PO and the CR groups - the CR group having been evaluated using positions and the PO group, using job titles - these evaluations cannot be used for comparison of job values between the two groups. [459] Dr. Bellhouse also concluded that there may be substantial selection bias in the PO sample because it was a selection of job titles rather than actual positions, and also because the job descriptions represented generic rather than actual job content. He cited the following example to illustrate his point: there is the possibility of biases creeping into what is the actual value say for a letter carrier, because it is a generic job description and might not catch the variability in job value that is present in the general population.142 [460] The Commission called a witness, Dr. John Kervin, who first appeared before the Tribunal in January 2002. [461] Dr. Kervin attended in his capacity as Professor in the Department of Sociology and as a researcher at the Centre for Industrial Relations, both of the University of Toronto. He obtained his B.A. in Sociology from the University of British Columbia and earned his doctorate at John Hopkins University in Baltimore in 1972. His PhD thesis was entitled "An Information-Combining Model for the Formation of Performance Expectations in Small Groups". Dr. Kervin began his academic career in 1971 as Assistant Professor at the University of Toronto and became Associate Professor (tenured) in 1976. He was cross appointed to the Centre for Industrial Relations in 1977 where his research work is largely carried out. Dr. Kervin indicated that an important part of his research and teaching academic life has been with respect to methodology statistics and data analysis and the effect of gender on social interaction. He has undertaken research projects such as "Measuring Gender Bias in Wages" and has had a number of refereed articles published including one entitled "Where's the Bias?: Sources and Types of Gender Bias in Job Evaluation". Clients seeking Dr. Kervin's research services have included the Management Board of the Ontario government and Treasury Board Canada, some of which involved statistical data analysis in a "pay equity" context. An example of Dr. Kervin working jointly, with another party, in this case with Dr. Nan Weiner, is "Report on Possible Gender Bias in the Bank of Montreal's Hay-Points Compensation System - 1999". Dr. Kervin is a member of the Canadian Sociology and Anthropology Association and of the American Sociological Association. He is also a member of three industrial relations associations. [462] The evidence of Dr. Kervin, presented as a witness for the Commission and qualified as an expert in data collection and data analysis (with `data analysis' including the use of statistics and statistical methodology), generally contradicts that of Dr. Bellhouse. Dr. Kervin's main criticism of Dr. Bellhouse's Report is that it is predicated upon an incorrect foundation. Whereas Dr. Bellhouse's Report stresses the analytical nature of statistical analysis and the need for scientific reliability, Dr. Kervin indicated that, when dealing with sociological phenomena, one must place the phenomena in the context of its social culture. In order to do this, the key component to data collection concerning the phenomena being studied is the initial formulation of the right question. He stated in his Report that Dr. Bellhouse never did ask the pertinent question, given the context of the Complaint.143 Dr. Bellhouse's concern was that the data analysis, using the data collected, follow the scientific method. That the analysis employ procedures and empirical evidence and tests that are replicable appeared to be his main concern. He grounded this concern in a belief that "pay equity" stands for the philosophy that everyone should be paid according to what his or her job is worth. [463] This is not, according to Dr. Kervin, correct. He felt that the real "pay equity" issue is "is there a gender-based wage gap, controlling for the value of the work?"144 This, Dr. Kervin's Report indicates, is because the concept of "pay equity" assumes that there is a gender-based bias in wages. What one wishes to do when testing for that assumption is to identify the jobs, the gender composition of those jobs, the job values, and the wages. [464] Dr. Kervin stated that he would want to look at the jobs both quantitatively as well as qualitatively, and with the judgement that comes from the "art" aspect of dealing with sociological questions. Dr. Bellhouse's Report did not take into consideration the "art" demands as well as the "science" demands of the Complaint. This difficulty, combined with his insistence that there be a correlation between the wages and classification levels, should negate Dr. Bellhouse's reported concerns about the Commission's sampling process, according to Dr. Kervin. The latter concern about the correlation between wages and classification levels indicates, according to Dr. Kervin, that Dr. Bellhouse does not understand the systemic foundations of the "pay equity" issue. [465] Dr. Kervin stated in his Report that Dr. Bellhouse's conclusions address, principally, issues of sampling and job value measurement. Dr. Kervin generally disagrees with these conclusions. [466] Specifically, Dr. Kervin was of the view that there is no need for a census of the total population concerned to meet the objective of "pay equity". A representative sample is more than adequate. He also argued that Dr. Bellhouse's rationale for use of a census - the overlap of Hay job points across CR classification levels - is invalid because the overlap is not due to sampling. It is due solely to the use of a different measure of the value of jobs. The overlap remains regardless of the type of sampling. [467] Dr. Kervin found invalid Dr. Bellhouse's argument that the 1986 sample design was flawed because it followed employees rather than positions and thereby led to biases and higher rates of non-response. Dr. Kervin stated that he discovered no evidence to support this position. [468] Dr. Kervin agreed with Dr. Bellhouse that the PO sample was not a probability or random sample, but rather a judgement sample. Unlike Dr. Bellhouse, however, Dr. Kervin argued that it was likely to be reasonably accurate. He felt that this was one of the examples where he and Dr. Bellhouse were pursuing different "research questions" - Dr. Bellhouse searching for statistical accuracy and significance, and Dr. Kervin addressing the needs of a "pay equity" situation. [469] Dr. Kervin disagreed with Dr. Bellhouse that there may be substantial selection bias in the PO sample. He argued that Dr. Bellhouse devoted no discussion to the manner of selection or to the possibility of selection bias due to the use of job titles and generic descriptions. [470] Finally, with respect to the measurement of job value at the level of job titles for the PO's and positions for the CR's, Dr. Kervin classified this as a difference in the unit of analysis and not as a difference in measurement. Dr. Kervin further stated that it is a situation that can be easily remedied. [471] Clearly, there is an appreciable difference of opinion, if not a contradiction, between these two expert witnesses on the issues of sampling and job value measurement. [472] The `job specifications' used for the 10 `generic' PO jobs were, in some ways, similar to the CR Job Fact Sheets. The information accumulated for them was provided by Canada Post, which also provided a number of PO job descriptions based on the job titles of the 10 "generics". Some of these job descriptions were "unofficial", not having had the endorsement of the relevant unions. While generally containing more up-to-date information than the CR Job Fact Sheets, the `job specifications' do not represent specific incumbent-held positions, but rather are an amalgam of functions for 10 commonly held job types. This results in a less than equal and compatible comparison between complainant and comparator jobs. Added to this is the fact that the gathering of the data was undertaken at different times - 1986 in the case of the CR's, and 1990-1991 in the case of the PO's. Such a time difference is usually considered unacceptable in a job evaluation exercise. [473] Canada Post argued, additionally, that the 10 `generic' PO jobs had been undervalued because certain aspects of "sub-jobs", such as the rotational work of the PO-4's, had been excluded during the Professional Team's evaluation process. [474] Although evaluation of the `generic' PO jobs was not dependent on the Job Fact Sheet, as the CR evaluations were originally meant to be, it relied heavily on the `job specifications' developed by the Commission. As already noted, these specifications were created, based on a variety of data acquired through a series of meetings with Canada Post management personnel. While appreciating why the Commission took this particular route, evidence before the Tribunal indicates that most job evaluation experts would not regard this information gathering methodology as a propitious approach. According to Dr. Pat Armstrong, an expert witness for the Commission, managers are generally too far removed from operational work to know it in the depth required for evaluation purposes. Contact with individual job incumbents is the favoured route. In fact, the job profiles made available by Canada Post for use by the Commission in developing its 10 PO `job specifications' posed their own difficulty because they were labelled "draft" and did not have union approval. [475] Because of the unusual nature of the information gathering techniques used by the Commission, the Professional Team had an over-abundance of job information about the PO community. In addition to the `job specifications', certain job descriptions, job profiles and behavioural dimensions were available. They also had access to various Canada Post manuals, handbooks, and other materials. When the evaluation work was done by the Team in June 2000, it had access to the very considerable evidence and supporting material of the Canada Post witnesses who testified largely about the functions and activities of PO workers. Although the Team's examination of all this documentation at that time led to few changes in their original evaluations, it did serve to fortify the PO job data already in hand, even if only in the configuration of the 10 `generic' PO jobs. [476] The 10 `generic' PO jobs do not represent any of the many jobs in the PO supervisor sub-group. Yet, the samples of CR incumbents do include some supervisors at the CR-5 level. This raises questions of consistency and completeness between the complainant and comparator groups. [477] Items such as organization charts and the Interview Guide were regarded as secondary and tertiary sources of CR job data. Difficulties with these two instruments have already been identified - dated and missing versions of the charts, and the dissatisfaction of both Canada Post and the Alliance primarily about the content and proposed use of the Interview Guide. In fact, Dr. Wolf testified that the Interview Guide did not add anything in particular to the Team's understanding of the CR incumbents' job duties. [478] Having access to the Commission's Rationale Statement brought criticism from Canada Post and its three key expert witnesses whose principal testimony is considered later in this section. Their concern related to the Professional Team's use of the Rationale Statement in preparing its primary listing of CR positions and PO jobs that it would evaluate. The Team's list was based on the Commission's total evaluation point scores in ascending order, which were identified in the Rationale Statement. The experts appearing before the Tribunal for Canada Post considered this to be unacceptable for an evaluation process, and felt that such use could have unfairly influenced eventual evaluation ratings. [479] The telephone interviews with CR incumbents conducted in advance of the actual evaluations undertaken by the Professional Team in Phases 1 and 2 were a well-intentioned exercise designed to improve the Team's job knowledge. Dr. Wolf acknowledged that the interviews focused, primarily, on working conditions and, with one or two exceptions, did not add anything significant beyond that aspect. Also, completed interviews of 63% in Phase 1 and 57% in Phase 2 raise questions about whether the positions of the significant number of incumbents who did not participate, for whatever reasons, were disadvantaged in some way. Given the importance of consistency and completeness, and even fairness of treatment, there is, therefore, probably some limitation to the full benefit of this additional information. [480] The process by which the Professional Team undertook the individual job evaluations was decidedly superior to that of the Commission in either its 1987 or 1991 evaluations. The Team operated as an entity, jointly reaching its decisions either unanimously or by consensus. This is the committee methodology recommended by evaluation experts, and follows the model presented in the Commission's booklet. [481] The Professional Team's process did, however, have a number of weaknesses. For example, only one of the three members had ever been in a Canada Post facility or was familiar with postal operations. It did not, of course, have representation from the relevant organizational levels of the employer. Given the circumstances of this particular case, the Team was operating as an outside contracted body, without any contact with the employer and little or no contact with its employees. It had little background or direct knowledge of the nature, history and dynamic of the organization involved, except what the third member, having some Canada Post experience, could provide. [482] The Professional Team's Audit Trail record led to difficulty in tracking precisely how Dr. Wolf and his colleagues had used the Hay Standard, and the rationale for their choices and evaluation ratings. In cross-examination, Dr. Wolf admitted that their Audit Trail did not reflect all their reasoning behind the ratings. He said it was "rudimentary" and "a rough outline as opposed to detailed". He went on to admit: ...if you are suggesting we did a sloppy job of putting down an audit trail, I will concede that.145 (v) The Professional Team's Position re: its 1993/1994 Job Evaluations [483] Dr. Wolf acknowledged that he and his two colleagues found many shortcomings in the available job information and data. Indeed, as already noted, he went so far as to label the Job Fact Sheet, originally intended to be the primary source instrument for obtaining up-to-date information on both CR and PO positions, as "abominable". [484] With respect to his Team's job understanding based upon the materials before it, he testified as follows: ...I would have to say, with the exception of the four jobs which we passed (sic), that our understanding was adequate but not necessarily ideal...146 [485] What is the meaning of "adequate"? The Oxford Concise Dictionary defines "adequate" as "sufficient, satisfactory; barely sufficient". Webster's Dictionary defines it as "enough for what is required; sufficient; suitable". In turn, "sufficient" is defined by Oxford as "sufficing, adequate, enough" and by Webster as "as much as is needed, enough, adequate". [486] Based on these definitions, Dr. Wolf and his Team must have felt that the job information before them was enough for what they required to undertake the job evaluations. It was sufficient. [487] With respect to the Hay Standard, and how the Professional Team employed it in their evaluations, Dr. Wolf testified, as follows: Q. How does the standard here compare with commercial standards? A. As I think I have indicated, we took a more rigorous approach or more exacting than we would normally be. So it certainly at least meets, and in my opinion probably exceeds, the typical commercial standard, if you will, what consultants from Hay or other consulting firms are doing for their clients.147 (vi) Canada Post's Position re: the Commission's 1991 and the Professional Team's 1993/1994 Job Evaluations [488] Canada Post's stance on the reliability of the Professional Team's work is clear. It submitted that the job information and data are not sufficiently reliable to substantiate the Complaint, and, specifically, cannot be relied upon to determine whether or not there is a gender-based wage gap within the meaning of section 11 of the Act. Canada Post also takes the position that the Hay System is not appropriate for "pay equity" evaluations involving `blue collar' and clerical workers, and that the process undertaken by the Professional Team was faulty. [489] In support of its position, Canada Post called the following three expert witnesses, listed in order of their appearance before this Tribunal (the first two of whom provided testimony on both the Commission's 1991 evaluations and the Professional Team's 1993/1994 evaluations): Ms. Nadine Winter first appeared before the Tribunal in April 1996 as President of N. Winter Consulting Inc., a firm specializing in job evaluation, pay research and compensation management. Prior to establishing her own company in 1989, Ms. Winter was with Hay Management Consultants Canada Ltd. from 1982 to 1988. In her role as Director of Equal Employment Programs, she advised Hay consultants and clients and was involved in the modification of the Hay System to comply with requirements for gender neutrality. She identified one of her accomplishments as the implementation of the Hay System, in a "pay equity" context, in the Government of Manitoba. She became a partner with Hay Canada in 1987, with the title Director of Employment Equity Practices. She was qualified by the Tribunal as an expert in job evaluation and compensation management, including consulting expertise in pay equity and equal pay for work of equal value. Mr. Norman D. Willis first appeared before the Tribunal in May 1996. At that time, he had been retired for two years. He started his job evaluation career with Hay & Associates in 1968, in the United States. By 1971, he had formed his own company, specializing in management training and human resources studies. He developed his own job evaluation plan, which was conceptually similar to the Hay System, in 1974. That plan has evolved since then, incorporating changes to meet client requirements. His initial focus was clients in the Seattle area. His first Canadian job evaluation proposal began with a presentation on equal pay to the Government of the Yukon in 1985. Subsequently, he handled job evaluation studies in Prince Edward Island, the Northwest Territories, Alberta and Manitoba. Willis & Associates was hired by the Joint Union-Management Initiative Committee (JUMI), a combined Canadian government and public service unions "pay equity" study, to assist the Committee in its work. Eventually, the Committee decided to use the Willis Evaluation Plan provided it could be changed to meet the criteria of the enabling legislation, the Canadian Human Rights Act, section 11. Those changes were made. Later, Mr. Willis attended as an expert witness before the Treasury Board tribunal which heard the union complaint, brought under section 11 after the JUMI Study had broken down. He was qualified as an expert in pay equity and in job evaluation by this Tribunal. Mr. P.G. Wallace first appeared before the Tribunal in June 2002. At that time, he was Senior Vice-President of Aon Consulting Inc., an organization offering consulting services on the management of compensation practices. He has had considerable experience in job evaluation and compensation design, having participated in the introduction of the Hay System at the Bank of Montreal in the 1970's. He also managed the Hay job evaluation process corporately for Shell Canada Ltd. and integrated it with Hay worldwide for the parent company, Royal Dutch Shell. In his current role, he consults with a wide range of companies in designing, implementing and administering various job evaluation programs. He was qualified by this Tribunal as an expert in job evaluation. a) Ms. Winter's Testimony [490] After examining the Commission's 1991 job evaluation work, Ms. Winter reached a number of conclusions, the principal ones being the following: in adopting the Hay XYZ Plan, the Commission chose a method that fails to measure, accurately and completely, all aspects of the work found in clerical and blue collar positions (while also noting that neither the Alliance nor Canada Post had approved use of the Hay Plan); the majority of CR positions were evaluated individually by the raters and not as a committee; in the case of the 10 `generic' PO jobs, all but one were evaluated by at least two raters, resulting in a different rating process between the CR's and the PO's; the Commission's rater, who evaluated the largest number of CR positions, had no previous job evaluation experience; the Commission's raters, as a whole, had inadequate knowledge of the CR and PO positions; the data collection tools for the CR's and the PO's were incapable of collecting accurate, consistent and complete descriptions of the work concerned; in particular, the Job Fact Sheet could not generate accurate, consistent, and complete position information; CR employees were asked to evaluate their own positions rather than provide factual position information; instructions and guidelines presented to the respondents were inadequate and confusing; because the Job Fact Sheet was based on System One, information not relevant to that system was not collected; this meant that information in areas such as human relations skills and working conditions was lost; the intended purpose of the Interview Guide was unclear and there was apparently no common set of guidelines and definitions available to assist interviewers; the same deficiencies found in the Job Fact Sheet were replicated in the Interview Guide; several changes were made in the Interview Guide's design after the interview process had begun; sometimes, there were conflicts or differences within position descriptions but these were not clarified by the interviews; the PO position information collected was incomplete and did not reflect actual positions; the uniqueness and variations of individual positions was not recognized; job rotation requirements at the PO-4 level were not acknowledged; the `job specifications' for the PO group were a subjective compilation by one person, with no confirmation by employees or on-site observation; there is no indication that the 1991 CR and PO Benchmarks were representative of the full range of positions involved; the quality of the Benchmark information was seriously deficient; how the Benchmarks were used in guiding the evaluation of other positions seems to be unclear, even, according to his evidence, to the head investigator; the sample group of 93 CR positions and the 10 `generic' PO jobs do not make visible all the work of the total population of CR's and PO's; the Commission may have biased the evaluation process by initially evaluating CR positions in the order in which they were filed, by CR classification level; the Commission's Rationale Statements fail to provide adequate justification to explain and defend the ratings; the Commission failed to check, formally and systematically, the consistency and correctness of the evaluations; many of the formal `sore thumb' reviews, that are integral to the Hay System, do not appear to have been applied. [491] In summary, Ms. Winter concluded that "the process to collect position information was seriously flawed..." and that "the Commission did not apply a disciplined, rigorous or defensible process to determine the value of the CR positions and PO jobs which they rated".148 [492] Ms. Winter's principal conclusions, arising from her examination of the job evaluation work of the Professional Team, included the following: she expressed the same concern as she had expressed about the Commission's 1991 evaluations using the Hay Plan; she claimed that this plan fails to measure, accurately and completely, the work found in clerical and `blue collar' positions; the Professional Team did not follow the standard application of the Hay Guide Chart-Profile Method; it relied on job-to-job comparisons rather than on job-to-Guide Chart definition comparisons; by beginning to order positions according to their classification levels, and by the Commission's ratings, the Team may have biased the evaluation process altogether; a representative and consistent set of benchmark evaluations was not established at the start of the evaluation process; both Canadian and U.S. Hay job description standards for salary survey purposes were used in the evaluations, creating a consistency problem; Phase 1 positions were not used as formal Benchmarks, nor were they selected as reference positions in any rigorous and systematic manner; some positions, with few job characteristics in common with other positions or with deficient supporting documentation, were used as reference positions; all three evaluators lacked experience in evaluating `blue collar' and clerical positions with the Hay Guide Chart-Profile method; there were serious deficiencies with the position descriptions primarily in terms of age, accuracy and official status and the evaluators' knowledge of the positions was extremely limited; the Team failed to administer a disciplined, formal `sore thumb' review of evaluation results; several other issues were cited, including the time lapse between Phases 1 and 2 evaluations, the poor audit trail record and a flawed definition of `magnitude' in the Accountability factor. [493] In summary, Ms. Winter concluded that the Professional Team diverged significantly from the standard application of the Hay Guide Chart-Profile method of job evaluation and accepted significant deficiencies in position content. She also concluded that "the quality of the position information for both the CR and PO positions was not adequate for evaluation purposes".149 [494] Ms. Winter also undertook a comparison of the Commission's (1991) and the Professional Team's (1993) CR evaluation rating results. Both sets of raters evaluated the same 93 CR positions with almost the same data and with essentially the same Hay Plan. Under these circumstances, Ms. Winter indicated that respective ratings should be very similar. If they are not, the results cannot be accepted as reliable. [495] Ms. Winter concluded that the hierarchies of value, reflected in the two sets of evaluation results "...are clearly inconsistent with each other. Given the inconsistency in results, the Tribunal cannot rely on either set of rating results". Apart from the different evaluation `discipline' adopted by the two groups of raters, she believed that there were three explanations for the number and size of the inconsistencies of the two results. First, the Hay method is not an appropriate tool to measure the value of CR and PO positions. Second, the application of the Hay method requires a consistent set of Benchmark evaluations to guide subsequent evaluations. No Benchmarks were used by the Professional Team and the ones used by the Commission were inadequate. Third, the lack of quality position information made it impossible to arrive at consistent and meaningful evaluation results.150 b) Mr. Willis' Testimony [496] Mr. Willis summarized the conclusion of his examination of the Commission's 1991 evaluations, as follows: Compared to the disciplined approach required in the conduct of a sound Pay Equity study, the CHRC's effort was a poorly designed overall plan and a casually implemented process using data that could not form the basis of acceptable evaluations. It would not be possible to depend on the evaluations by this group for a viable Pay Equity result.151 [497] More specifically, Mr. Willis concluded the following: the Commission allowed the Alliance to `cherry pick' the male comparator jobs by not including in its investigation any jobs not mentioned in the Complaint; the GS and GL&T group of employees was ignored; the Hay Guide Chart-Profile system used should have been satisfactory as an evaluation instrument, provided the evaluators received adequate training; the Working Conditions factor which was apparently developed by Hay Canada provided for a wide range of points within each level or each sub-factor, thereby making it extremely difficult to evaluate consistently; there was evidence of mis-application of the Human Relations Skills sub-factor on a number of occasions; the evaluators discarded the Profile step (a means of checking the inter-factor relationships) in the evaluation process because the evaluators "were getting some rather strange profiles"152; the wording in the Accountability, Magnitude, and Impact sub-factors was arbitrarily changed by the evaluators during the evaluations, which could have modified ratings and caused inconsistency; Benchmark job evaluations are appropriate for this case but should be representative of the jobs within the total group being evaluated and commonly understood by the evaluators - this was not done by the Commission; the Benchmarks should have been evaluated by the full Committee and not by two evaluators, independently; the process of selecting position/job samples fell short of meeting the stringent sampling requirement needed for a "pay equity" project; the sampled jobs should represent a full range of the depth and breadth of the organization; they did not in this case; additionally, the reduction of the 194 to 93 samples of CR's could not be considered sound or objective; the quality of job information utilized was unacceptable and could not be expected to produce a fair, equitable evaluation result; "...the Job Fact Sheet was hopelessly inadequate for Pay Equity evaluation purposes"; the job descriptions "...were only of minimal usefulness ... in support of the Job Fact Sheet..."; "...a 14-page Interview Guide, incorporated into the information provided to evaluators was more of a liability than an asset..."; the job data were collected at two different times, 1986 for the CR's and 1990/91 for the PO's;153 while the PO `job specifications' came closer to providing factual job information, they were based on management and not employee-supplied data, and were acquired by a totally different process from that used for the CR's; the Commission's sore-thumbing step was not a proper one - it should be a tightly structured, group-led comparison of the evaluations concerned, sub-factor by sub-factor and factor point level by factor point level. [498] Mr. Willis summarized the conclusions of his examination of the Professional Team's 1993/1994 evaluations as follows: the Team "...misused the Hay evaluation plan by employing it as a factor comparison system"; the Team used essentially the same inadequate job content information as was used by the Commission evaluators; the Team was "...ill-equipped to successfully complete their charge due to their lack of knowledge and backgrounds to undertake the assignment, and due to an approach to the evaluations that lacked the necessary discipline. The evaluation process utilized was unacceptable considering what is needed for a successful Pay Equity Study".154 [499] Mr. Willis' final statement was "In my considered judgement, the efforts of the consultants retained by PSAC cannot be relied on for accurate Pay Equity evaluation results".155 [500] With more specificity, Mr. Willis concluded the following: he disputed the wisdom of using the factor comparison approach for the Hay Plan in a "pay equity" case and favoured the point-factor method of the Hay Guide Chart-Profile approach to job value measurement; this preference was based on his opinion that the point-factor method is more suitable for evaluating a wide variety of jobs in a "pay equity" context; further, he was of the view that the factor comparison approach is more acceptable in a traditional single occupational group of jobs; the Professional Team had the same inadequate job information used by the Commission, including the Job Fact Sheet, Interview Guide, job descriptions, and `job specifications'; there were missing CR job descriptions and those of the PO's were "unofficial"; he agreed with Dr. Wolf's opinion that the telephone interviews conducted by the Professional Team, "...with one or two exceptions, outside of the working conditions arena ... did not add anything significant"156; knowledge of each job's classification level was available to the three Team members and this knowledge could have affected their perception of the jobs and, consequently, their evaluations; use of the "black box analysis" approach to job evaluation could not be expected to provide a useful assessment of what was contained within the black box, given the poor quality of job information input; it was a "highly questionable practice" to use the Hay U.S. job description standard, particularly for a "pay equity" case, as this standard was intended for survey comparisons and it cannot be assumed that U.S. and Canadian job titles, even if the same or similar, are the same in job content. c) Mr. Wallace's Testimony [501] Mr. Wallace indicated that his firm had been asked by Canada Post to review and comment on the process undertaken by the Professional Team in 2000 in addressing the possible impact on its 1993/1994 evaluations, of the considerable additional evidence that had arisen from a number of Canada Post witnesses. Mr. Wallace stated that he used what he termed "...standard criteria against which job evaluation exercises within companies are measured".157 What he wanted to know was if the Team's job evaluation results were accurate, consistent, and credible. [502] Mr. Wallace further indicated that "in conducting this review the goal is to determine whether or not the process and discipline employed by the Committee [Professional Team] was capable of yielding results meeting these criteria".158 [503] The principal conclusions reached by Mr. Wallace included the following: the processes followed and particular actions taken by the Professional Team fell short of many of what he considered to be industry standard practices for the evaluation of jobs, having the effect of significantly compromising the accuracy, consistency and credibility of the results; "the lack of complete and consistent documentation on what is being measured by the job evaluation process ... and the failure of the Committee [Professional Team] to apply the safeguards of the Hay system, directly affects the consistency of the evaluation results"159; the lack of discipline and rigour in the Professional Team's process should call into question the credibility of the evaluation results. [504] More particularly, Mr. Wallace concluded the following: the Hay Guide Chart-Profile method, while an excellent job evaluation tool, was inappropriate for clerical and production/operations jobs; the Hay factor comparison approach is dated and not in keeping with either Hay training materials or Mr. Wallace's 30 years of experience with the Hay method; the factor comparison approach is best suited for jobs that are similar in nature; "it is difficult to impossible to create an accurate ranking of dissimilar jobs through total reliance upon the factor comparison methodology without linking the evaluations to the guide charts"160; the Professional Team, while including recognized experts in the use of Hay methodology, had limited experience in postal operations; the potential for bias was high, given the Team was mandated by two of the parties in the case; while the Professional Team met for five days to deliberate over the impact of the additional evidence on its original evaluations, there was no apparent structure to the process followed; Dr. Wolf had no notes with him from his review of the material and no summary or analysis of the job data they had been considering; the initial screening of the additional material by a single member of the Team, Dr. Wolf, raises questions, particularly given the absence of documentation of what items were considered irrelevant or inappropriate; nor is there any documentation of the selected additional testimony; the job descriptions were incomplete and inconsistent and the additional information provided was not analyzed and documented appropriately; it is essential that an evaluating group be entirely satisfied with its job descriptions; Mr. Wallace disagreed with the Professional Team's decision "...to evaluate PO jobs only if they determined there was a just noticeable difference between their recollection of their original job understanding and their new job understanding"161; the Team should have justified its "just noticeable difference" judgement by use of the Hay Guide Charts and re-evaluated each job incorporating all the additional data; the weakness of the Audit Trail of the 1993/1994 evaluation process compromised the process of 2000 as there was no record of solid evaluations in the earlier period that could have served as reference positions for the 2000 evaluations, or of earlier controversial decisions that might have been altered by the additional material. (vii) The Alliance's Position h3: a) Ms. Winter's Testimony [505] The Alliance's submissions focus on three features relating to Ms. Winter and her evidence, as follows: her knowledge of Hay, and the Hay Job Evaluation Plan, her credibility, her Reports (Exhibits R-235, R-249, R-253, R-254 and R-278). [506] It is the Alliance's submission that, as the cornerstone of Canada Post's attack on the Commission's investigation and evaluations, and on the Professional Team's evaluations, Ms. Winter's evidence fails to meet the requirements demanded of an expert witness and was so lacking in credibility that it should be given no weight. [507] Ms. Winter joined the Hay organization in 1982 and began practical training as a job evaluation consultant in 1985, but did not regard herself as a full-fledged Hay evaluation consultant until early 1986. She was involved in the practice of job evaluation for some 2½ years while assuming other Hay responsibilities not directly related to job evaluation. Canada Post did not seek to qualify her as an expert in the Hay System of job evaluation. [508] The Alliance cites Ms. Winter's involvement, while still with the Hay Canada Company, in a legal action which Hay had brought against Norman Willis for what she termed a "violation of intellectual property laws". There were a series of mis-statements and revisions made by Ms. Winter as she gave evidence on this issue. The Alliance argued that these resulted from her desire to avoid acknowledging the strong and obvious similarities between the Willis and the Hay job evaluation plans. Given that the Willis Plan had been used, successfully, in several "pay equity" applications, including clerical and `blue collar' work, the Alliance asserted that Ms. Winter was attempting to mislead the Tribunal regarding those similarities. [509] The Alliance questioned Ms. Winter's credibility further, citing her failure to refer the Tribunal to the post JUMI tribunal decision (the Treasury Board case) which contradicted her opinion concerning the standard of reliability required for job information.162 She had called for a standard of correctness, as was demanded by her interpretation of the Ontario Haldimand-Norfolk decision.163 The Treasury Board tribunal decision was based on a standard of reasonableness. She claimed, when being cross-examined on this point, that she did not know what "reasonableness" meant in the context of "pay equity" evaluations. [510] Additional instances of Ms. Winter's lack of credibility were cited by the Alliance, as follows: she omitted key material when giving her opinion concerning the quality of job information; she had a tendency to highlight the negative, and to ignore the positive when giving her opinions, rather than answering questions directly; her responses to questions posed were often inclined to be argumentative; as her evidence continued for many days, her inclination to revise points made on the previous day, often at considerable length, became more and more evident. [511] In summary, the Alliance argued that, when viewed as a whole, Ms. Winter's expert evidence was biased towards the Respondent's position, and fell far short of meeting the standards, including independence, required of a credible expert witness. Therefore, the Alliance argued, Ms. Winter's evidence should be given no weight. [512] Most particularly, the Alliance's submissions concerning Ms. Winter's expert evidence focus on her opinion about the job data collection tools, the process and quality of the position information, and the Professional Team's job evaluation process. This opinion was presented in her viva voce evidence, and in Chapters 4 and 6 of her Reports (Exhibits R-235 and R-249). [513] Ms. Winter's Report contends that the "quality of the position information for both the CR and the PO positions was not adequate for evaluation purposes".164 She illustrated her contention by examining two CR positions which served as Benchmarks. After having reviewed all the pertinent documentation concerning these positions, she held that she had had difficulty understanding what the jobs were all about. One job, in particular, gave her great difficulty. In cross-examination of Ms. Winter, the Alliance demonstrated that the relevant supervisor for this job had identified another position that was essentially identical. Ms. Winter had used, as an example of a Benchmark which had such poor documentation that she could not understand what it was all about, the Benchmark position which referenced the nearly identical position. Ms. Winter, had, however, failed to refer to that nearly identical position. Had she done so, she would have enlightened her understanding of what she considered to be a difficult Benchmark position; the Professional Team had readily recognized the cross-over between the two positions. [514] In the opinion of the Alliance, Ms. Winter's evidence, in cross-examination, concerning her position as co-chair of the Hay Job Evaluation Process in the Manitoba Pay Equity Study illustrated her ability to integrate information found in different incumbent responses in order to obtain acceptable job understanding. This ability stands in sharp contrast, argued the Alliance, to Ms. Winter's approach to job understanding in the Complaint before this Tribunal. She often offered her opinions in isolation, and made little or no effort to integrate information available to her from several arenas. [515] Further examples of categorical or exaggerated opinions presented in her Reports, and in examination-in-chief, which were moderated in cross-examination, were cited by the Alliance. [516] Notwithstanding modifications and explanations made during cross-examination, Ms. Winter stood by her reported conclusions. More particularly, she stated that the Professional Team's evaluation results "cannot be considered reliable, accurate or reflective of the work performed" because the job information used was significantly deficient and the Professional Team's evaluation process deviated significantly from the "standard" application of Hay as she understood it.165 [517] This latter opinion was based on Ms. Winter's refusal to acknowledge that Hay could be applied, reliably, by means of a factor comparison approach, as was used by the Professional Team. The Alliance argued that this opinion should be rejected by the Tribunal based upon the opposite but more credible opinion of Dr. Martin Wolf, the only witness to be qualified as an expert in the use of the Hay Plan. The fact that Ms. Winter did not evaluate either the CR positions or the PO positions, using any job evaluation plan, underlined the theoretical nature of her opinion. Based, as it was, on theory which had been modified during her cross-examination, the Alliance submitted that Ms. Winter's opinion concerning the Professional Team's factor comparison approach to the Hay Evaluation Plan should be rejected. [518] In the portion of her Report (R-254) concerning the wage adjustment methodologies which the Commission and the Alliance had used, Ms. Winter stressed her belief that gender identification, valuing of work and any wage adjustment should take place at the level of the job itself rather than at the broader grouping and level in which the jobs are found. She conceded, in cross-examination, that the Treasury Board tribunal decision adopted the identification of gender at the level of the group rather than in the individual job. [519] Ms. Winter made reference to particular provisions of various provincial "pay equity" acts but made virtually no references to the Canadian Human Rights Act. She also failed to address sections 12 and 13 of the 1986 Equal Wage Guidelines, although she was criticizing the Commission and the Alliance for complying with these sections of the Guidelines. [520] The Commission and the Alliance approach, calculating an average Hay score for each CR level and a wage gap based on that average value, was, in the opinion of Ms Winter, flawed. This approach, however, has been used elsewhere, including the Treasury Board tribunal decision. [521] Ms. Winter also argued that each female-dominant CR position should be evaluated. She did not alter her opinion when, in cross-examination, it was pointed out to her that the Treasury Board tribunal decision had endorsed a sampling of the CR population. [522] Ms. Winter was critical of the make-up of the male comparator group, comprising PO-INT and PO-EXT sub-groups. She made particular reference to Ontario's Pay Equity Act and its requirement to seek a comparator within the complainant group.166 She also referred to other provincial jurisdictions that require the negotiation of comparator groups. In cross-examination, she admitted that these provincial provisions are not required under the federal legislation. [523] To summarize, the Alliance submitted that the Tribunal ought to draw a negative inference from Ms. Winter's Reports based on her failure to address the relevance of federal tribunal decisions, the Act and its Guidelines, all of which do not support her version of "pay equity". Her opinions were based almost solely on portions of provincial legislation.167 [524] Ms. Winter returned to present R-278, a Report which was to address the implications of newly-found CR job information. Her conclusion in that Report was a reiteration of her opinion that the job data used by all evaluators were inadequate. The Alliance submitted, in its argument, that Ms. Winter simply used this new Report as a pretext to revisit her earlier criticisms, while she continued to act as an advocate for the Respondent. b) Mr. Willis' Testimony [525] The Alliance's submissions focus on three features relating to Mr. Willis and his evidence, as follows: his knowledge of Hay Job Evaluation, his credibility, his criticisms of the Professional Team's process, the job information that process used, and their approach to Hay, all as expressed in his Report (Exhibit R-455). [526] While qualified as an expert in job evaluation and "pay equity" by this Tribunal, Mr. Willis was not qualified as an expert in the Hay method of job evaluation. He had only three years of direct experience in applying that method during his employment with the Hay organization from 1968 to 1971. He maintained links with a number of Hay installations after his departure from Hay. [527] The Alliance questioned the credibility of Mr. Willis. Its argument found a basis in a statement made by the Chair (now resigned) of this Tribunal during an earlier appearance by Mr. Willis. At that time, the Chair expressed reservations about Mr. Willis' expert opinion, given that he had not examined the relevant evaluations and supporting material before giving his opinion. [528] The Alliance submitted that Mr. Willis' Report, was prepared in a similar manner, without the proper foundation necessary to give an expert opinion. Mr. Willis admitted, when cross-examined about his Report that he had not read all the documentation sent to him by the Respondent. He had been asked, however, to prepare an expert's view on that documentation. Notwithstanding this admission, his Report, and his evidence concerning that Report, did not indicate that his opinions were based only on a partial review of the materials sent. Therefore, the Alliance submitted that his opinion should not be accepted as wholly credible. [529] The Alliance also pointed to a number of occasions when Mr. Willis, in evidence-in- chief, "insisted vehemently that he believed statements made by Dr. Wolf, in sworn testimony, to be fallacious". Such statements of opinion, argued the Alliance, "raise significant concerns regarding Mr. Willis' credibility as an objective and professional expert witness".168 [530] An inability to make even a slight concession to cross-examining counsel was also cited as an example of an expert witness who was intransigent and defensive of his position. In other words, Mr. Willis' expert opinions should be rejected as the opinions of someone who lacked the independent, professional approach, required of a credible expert witness. [531] The Alliance also challenged Mr. Willis' opinions, based on his lack of experience with a "pay equity" process which was taking place in an atmosphere of litigation rather than in a cooperative union-management atmosphere. Mr. Willis' "pay equity" experience had always been, according to his evidence, with the latter type of work where he acted as a facilitator who had the full support of employer management in undertaking the job evaluation studies and the gathering of job information upon which those evaluations would be made. He was, according to the Alliance, either unable, or refused, to comprehend the nature and context of the Complaint before the Tribunal. Indeed, Mr. Willis made one concession during cross-examination. He indicated that the process which he advocated in his Report and during his evidence-in-chief, would, except for the choice of the evaluation plan, be impossible without the full co-operation of the employer. [532] Based on that concession, the Alliance submitted that to accept Mr. Willis' Report and evidence would be to place the standard necessary for the successful presentation of a prima facie case by a complainant in any "pay equity" complaint under the Canadian Human Rights Act so high that a refusal by the employer to co-operate would always result in the failure of the complaint. c) Mr. Wallace's Testimony [533] The Alliance's submissions focus on three features relating to Mr. Wallace and his testimony, as follows: his knowledge of Hay Job Evaluation, his credibility, his Report (Exhibit R-615). [534] While qualified as an expert in job evaluation by this Tribunal, Mr. Wallace was not qualified as an expert in Hay job evaluation. He did, however, have considerable experience with the use of Hay as a client working under the direction of a Hay consultant. He had never worked for Hay in any capacity, nor had he ever been qualified as an expert in Hay before this Tribunal or any other tribunal or court. [535] The Alliance was of the view that Mr. Wallace's credibility was put in doubt when he criticized the job understanding of Dr. Wolf and his colleagues, having read only a fraction of the material read, analyzed and evaluated by the Professional Team. Mr. Wallace admitted that he had not been provided with, and did not seek access to, certain original job documentation that had been available to the Professional Team. In fact, Mr. Wallace conceded, in cross-examination, that the Professional Team had a better understanding of the jobs concerned than he had. [536] The Alliance also submitted that Mr. Wallace tended to highlight the negative and to ignore the positive in the Professional Team's Reports, and in Dr. Wolf's testimony. [537] Mr. Wallace's Report must, according to the Alliance's submissions, be read in context. That context is that he did not have access to much of the material upon which the Professional Team had relied to make its evaluations. [538] His Report is a critique of the Professional Team's methodology, process, and the job information used in its evaluations. It stresses that job evaluations, especially for "pay equity" purposes, must be done at a standard used in industrial practice. This is Mr. Wallace's usual methodology. This simply underlines his familiarity with employer-supported studies, and his lack of familiarity with a process taking place in a litigious arena. [539] The Alliance submitted that "the most significant criticism that Mr. Wallace brought against the Hay Plan was found in his explanation of Appendix `A' to his Report, which shows a weak correlation between Hay points and money paid to CR's. Mr. Wallace admitted, in cross-examination, that he had not considered whether this wage gap for women performing work which appeared to have equal value with men could have been caused by a "pay equity" problem.169 [540] According to the Alliance, Mr. Wallace's criticisms of the process followed by the Professional Team, compared with the one he proposed, reveal an essential difference in approach. The Professional Team began their 2000 process with the assumption that their earlier evaluations were `correct' and would only change if the additional and new material altered their previous understanding of each job. Mr. Wallace's proposed process was an internal, non-litigious, job evaluation appeal process. This is unlike the process necessitated by the facts of this case. [541] In sum, the Alliance submitted the following, concerning Mr. Wallace's evidence: Mr. Wallace's Report and testimony must be read and appreciated in light of the acknowledged fact that he did not have access to much of the material read, analyzed and evaluated by the Professional Team; Mr. Wallace failed to appreciate the fundamental difference between the complaint before the Tribunal, a complaint which was litigious almost from the beginning, and the employer-managed "pay equity" job evaluation process with which he was familiar; Mr. Wallace acknowledged that the Professional Team had a greater understanding of the jobs and positions being evaluated than he did at the time he constructed his Report, and gave his evidence. (viii) The Commission's Position re: Canada Post's Expert Witnesses - Ms. Winter, Messrs. Willis and Wallace [542] The Commission first noted that none of the three experts presented by Canada Post had actually worked with any of the job data which they found to be unacceptable. Secondly, their opinions were all based on incomplete information. Either the materials provided to them by Canada Post were incomplete, or the witness had not read all the material presented to him/her as the basis for the expert's report requested. [543] Only the Professional Team had reviewed all of the job information, including that led by Canada Post in its defence. The Commission submitted that the two weaknesses noted are sufficient for this Tribunal to discount the evidence of all three experts presented by Canada Post to report on the evaluation process, the evaluation methodology chosen, and the job information used. [544] The Commission re-iterated the submission that Ms. Winter's Report wrongly relied on a standard of `correctness' rather than the standard of reasonableness to criticize the collection of job data, and the job information used by the Professional Team during its evaluation process. In her Report, Ms. Winter had noted that the decision of the Ontario "pay equity" tribunal in a complaint involving a Haldimand-Norfolk hospital had concluded that the standard to be applied was that of correctness, and she indicated in her viva voce evidence the following: Q. ...indicate that a standard of correctness was applied by the Ontario pay equity hearings tribunal in the Haldimand-Norfolk case. Now, ... I take it that you adopt that standard or that you have adopted that standard in your report? A. Of correctness, yes.170 [545] Indeed, Ms. Winter went on to indicate that she did not know what was meant by `reasonableness'. [546] The Commission argued that this reliance on the standard of correctness as a foundation for the expert opinion presented in her Report and in her evidence before the Tribunal should be reason for the Tribunal to discount her evidence. This reliance on a standard of correctness is, according to the Commission, merely an example of the tendency of Ms. Winter to define "pay equity" principles rigidly. Her rigidity was noted, adversely, by the Ontario Court (General Division) in the Service Employees International Union case, where the Court preferred the expert evidence of Dr. Pat Armstrong compared to that of Ms. Winter.171 [547] The Commission submitted that rigid principles are inconsistent with a standard of reasonableness. Indeed, the Commission contends that Ms. Winter herself did not apply the exacting standard of correctness to job information available to the Manitoba Pay Equity Study, for which she was jointly responsible during her days with the Hay organization. In fact, she indicated in evidence that it was necessary, in that case, to "work with" the Manitoba job information. This attitude is analogous to the evidence of Dr. Wolf that the Professional Team had to "work with" the job data which was available to them. [548] Ms. Winter's own admission of a less than rigid approach to job information during her work with the Manitoba Pay Equity Study is in sharp contrast to her unrelenting criticism of most, if not all, of the job documentation in this case, and her condemnation of the approach taken by the Professional Team to the job documentation. Accordingly, the Commission submitted that Ms. Winter lacks credibility as an expert giving an opinion concerning the job information upon which the Professional Team founded its evaluation process. [549] The Commission submitted that Mr. Willis' expert opinion concerning the job information and the evaluation methodology and process should also be given less weight than that of the expert opinion of Dr. Wolf. It bases this submission upon its indication to the Tribunal that Mr. Willis was unclear, even ambiguous and evasive, about how long he had taken to review the job documentation materials presented to him by Canada Post to be a basis for his expert opinion. [550] Additionally, Mr. Willis' experience in "pay equity" evaluation processes was largely based on joint studies in which job data was generated with the agreement of all parties involved. Although he was, as the facilitator in the study which used his `Willis Plan' as the basis for its process, qualified as an expert witness in the Treasury Board case, that complaint involved primarily the issue of the reliability of the methodology chosen to deal with the joint union-management "pay equity" study and evaluation process. [551] According to the Commission, Mr. Wallace's critical opinion of the job information should be largely discounted because he did not, nor was he asked by Canada Post, to review most of the job documentation. His review was largely limited to an examination of the Professional Team's consideration, in 2000, of the additional evidence provided by Canada Post's many defence witnesses. Additionally, he was provided with portions of data contained in the transcripts of Dr. Wolf's cross-examination. Therefore, the Commission submits that Mr. Wallace's view of the job information is "only through the eyes of Canada Post" and his opinions are not independent of his client. H. Reliability of Methodology Used by the Professional Team: - Tribunal's Analysis (i) Introduction [552] Human rights legislation demands constant attention to the purposive interpretation of the statute involved. In a recent decision of the Federal Court of Appeal concerning the interpretation of "establishment", Evans, J.A. stressed this need, as follows: Any analysis of a statutory human rights issue must be undertaken with a view to the purposes of the legislative scheme and of the policy objectives of the particular provisions in dispute. A search for the meaning of human rights legislation, including subordinate legislation, must both start with, and be informed throughout by, its essential objective.172 [553] As suggested in paragraph [412], the Tribunal accepts that the standard that ought to apply in "pay equity" complaints brought under section 11 of the Act, such as that before this Tribunal, is the standard of `reasonableness' in determining the reliability of the job evaluation system chosen, the process followed, and the job information used. [554] The Tribunal rejects the submissions of Canada Post that a rigid standard of `correctness' is necessary for the purposes of a "pay equity" process. Rather, the Tribunal finds that the standard of `reasonableness' accepted by the tribunal in the Treasury Board case is more conducive to the interpretation of human rights legislation, and section 11 of the Act in particular. In the case before this Tribunal, the evidence of most experts, including those of Canada Post, presented the concept of job evaluation as "more an art than a science". Therefore, any standard which could not accommodate this concept should be rejected. [555] Each of the elements necessary in testing reasonable reliability should be examined. In other words, the job evaluation system chosen should be reasonably reliable, the process and methodology used in evaluating the relevant jobs/positions should be reasonably reliable, and the job information and its sources should be reasonably reliable. The findings of the Tribunal should be based on the civil standard of a balance of probabilities. [556] In this regard, the Tribunal has already noted the importance of examining the evidence provided by a number of expert witnesses in a systematic manner. The components of the systematic model employed by the Tribunal were identified in paragraph [419]. [557] The first several components of the model have already been addressed. The Tribunal has noted the party who called each expert witness, the expert's field of expertise, and each expert's mandate and conclusions reached. The expert witnesses have been identified as Dr. Wolf, Ms. Winter, Mr. Willis, Mr. Wallace, Dr. Bellhouse, and Dr. Kervin. [558] While the first several components of the systematic model receive further attention in this analysis, they are examined, as appropriate, in the context of the remaining components of the model. In other words, the Tribunal will comment on the extent of each expert's knowledge, experience and standing in his/her field of expertise, and how each expert fulfilled his/her mandate and presented his/her conclusions to the Tribunal. (ii) The Job Evaluation System Chosen [559] The job evaluation system used by the Professional Team was the factor comparison approach to the Hay Plan. Canada Post, based upon the opinion of each of its three expert witnesses, submitted that the Professional Team's decision to employ this model of Hay was questionable. Indeed, Canada Post submitted that the use of the Hay Plan itself was not appropriate to a process which would evaluate, for "equal pay" purposes, diverse jobs in the clerical and operations spheres of the corporation. [560] Although Mr. Willis, an expert witness for Canada Post, acknowledged that the Hay Plan, especially in its Guide Chart-Profile application, is a satisfactory job evaluation instrument provided the evaluators receive adequate training, his opinion was that the Professional Team "mis-used" the Hay Plan by engaging it in its factor comparison mode. Mr. Wallace, another expert witness for Canada Post, also contended that the Hay Guide Chart-Profile method was an acceptable job evaluation tool but regarded it as inappropriate for clerical and production/operations jobs. Mr. Wallace further felt the factor comparison method was long out-of-date. An additional Canada Post expert witness, Ms. Winter, condemned the Hay Plan, generally, for not being suitable to evaluate work of a clerical or "blue collar" nature. [561] Notwithstanding the opinions of both Mr. Willis and Mr. Wallace concerning the generally satisfactory nature of the Hay Plan as a job evaluation instrument, Canada Post's submissions faulted its use in evaluating clerical and `blue collar' work. In particular, counsel for the Corporation argued that Hay "under-weights" the working conditions factor, which, in turn, leads to under-valuing of elements important to clerical and `blue collar' types of positions. [562] Mr. Willis' opinion was qualified by his observation that the factor-comparison approach to the Hay Plan might be acceptable for use when it is applied to a single occupational group of jobs. In a "pay equity" case, involving a wide variety of male-dominant and female-dominant jobs, however, he believed that the "point-factor" approach to the Hay Plan was more appropriate. Indeed, Dr. Wolf had agreed, in cross-examination, that, although the factor comparison approach to Hay can be, and is, used with dissimilar jobs, it is easier to apply, and perhaps works better, with jobs of a similar nature.173 [563] Dr. Wolf indicated that it was the opinion of the Professional Team that the Hay Plan was quite able to accommodate clerical and `blue collar' jobs, particularly with the strengthened working conditions factor. This would be especially true when it was being applied by evaluators who had experience with the Hay methods. The Commission, in undertaking its 1991 evaluations, had also felt that the Hay Plan was capable of measuring `blue collar' and office-environment jobs. [564] In this case, the Professional Team which evaluated the sample CR positions, and the `generic' PO jobs was composed of two members who were former Hay associates, with many, many years of experience in working with Hay and other clients. The Tribunal finds that Dr. Wolf was the only expert witness who was sufficiently qualified to assess the validity and reliability of the Hay Plan generally, and the factor comparison approach, in particular, vis-à-vis the requirements of this Complaint. Although he did not appear as an expert witness, Dr. Ingster, the first member of the Professional Team to be approached by the Alliance, confirmed, in letters presented as exhibits in this Complaint, the acceptability of the Hay Plan for use with the materials presented to the Team for evaluation. [565] The Tribunal notes the Professional Team's statement, included in its Report, entered as PSAC-29, that its mandate was "that the Hay method was to be applied to the job content in accordance with the `best practices' of senior level Hay consultants considered to be expert in the use of the Guide Chart-Profile process". The request had been presented to Dr. Ingster when he was approached by the Alliance to participate in the evaluation process. The expert opinion, expressed by Dr. Wolf in his viva voce evidence concerning the Report of the Professional Team, reinforced the Team's conclusion that the mandate had been followed diligently. [566] While all three of the expert witnesses called by Canada Post had some experience in working with the Hay Plan, the Tribunal finds that only Dr. Wolf demonstrated that he had the in-depth historical knowledge of how the Hay Plan's original design and use had evolved, in its various configurations, over its many years of application. He testified that he had spent thirty years in job evaluation including about twenty years dealing with the Hay methodology. As observed earlier in this Decision, he estimated that he had evaluated upwards of 10,000 jobs using the Hay process, including office clerical and payroll systems jobs, and in his early days, even `blue collar' jobs. Moreover, when employed with the Hay organization, he had served as a "correlator" or "keeper of the flame" in the role of maintaining the integrity of the Hay system. [567] Additionally, the Team included Dr. Ingster, the person with whom the Alliance spoke first, and who had received the original Alliance mandate. Dr. Ingster spent an early part of his career with the Hay organization and later had an independent affiliation with Hay while working with a wide-range of clients. [568] Accordingly, the Tribunal gives significant weight to the ability of Dr. Wolf and his colleague, Dr. Ingster, to choose, under the unusual circumstances of this case, the most suitable configuration of the Hay Plan for use in the evaluation of the jobs/positions involved. [569] In contrast, the Tribunal finds that the expert opinion of Ms. Winter, in categorically dismissing the Hay Plan, was presented in a rigid and immoveable fashion, leaving the impression of being a witness who was espousing the position of her client rather than being an independent expert who was attempting to help the Tribunal understand difficult concepts outside its realm of expertise. [570] The evidence of Mr. Willis, while not supportive of the factor-comparison approach, did not dismiss the Hay Plan as such for job evaluation in a "pay equity" context. Nor did the evidence of Mr. Wallace. He stated, on page 2 of his Report, that the Hay Guide Chart-Profile method was "...an excellent job evaluation tool...", but he considered it inappropriate for use with "...clerical and production/operations jobs".174 [571] Therefore, the Tribunal finds that, on a balance of probabilities, the Hay Plan, whether using the factor comparison method or other approaches, is, in the hands of competent evaluators as were the members of the Professional Team, a suitable overall job evaluation scheme which will address the issues of this "pay equity" Complaint in a reasonably reliable manner. (iii) The Process [572] The Tribunal must answer the following question: Is it more likely than not that the process followed by the Professional Team in undertaking its evaluations of the complainant and the comparator positions and jobs, in this case, was a reasonably reliable one? [573] As noted earlier in this Decision, the Professional Team, having been engaged by the Alliance, undertook its evaluations as an entity, jointly reaching its decisions either unanimously or by consensus. This is, according to all of the expert evidence before the Tribunal, in line with what most experts in the field recommend. It is also in accord with the Commission's own model. The size of the Team was smaller and its make-up quite different from what one would normally expect. Usually an evaluation committee would be internal to the organization involved in the "pay equity" process. There might be external advisory or facilitation assistance. In this case, however, the situation which set the Professional Team in motion was far from normal. [574] The existence of the Professional Team was somewhat unique in the field of "pay equity" job evaluation undertakings. The process by which the Professional Team evaluations were completed was equally unique, as there was no direct involvement from the employer or employees as part of the evaluation committee. Obviously, this was not a standard approach to "pay equity" job evaluation. Given the litigious setting, however, this was a process chosen to evaluate the complainant positions and the 10 `generic' PO jobs using a "rigorous application of the Hay Guide Chart-Profile Method of job evaluation...".175 [575] Canada Post submitted that neither Dr. Wolf nor Dr. Ingster had experience with Canadian postal operations. Indeed, Dr. Wolf admitted in cross-examination that he had never been inside a Canadian post office facility. Although the third member of the Team, Judith Davidson-Palmer, had been an administrative management-level employee of Canada Post, she had little experience with the Hay Plan. [576] In addition to Canada Post's concerns regarding the make-up of the Professional Team, it submitted that there was a dearth of written records of exactly how the Team had conducted its work. The "audit trail", usually a vital part of any evaluation process, was weak at best, leaving little documentation to support the Team's conclusions. [577] Canada Post's three witnesses with experience in job evaluation processes denigrated the work of the Professional Team. Ms. Winter noted that the Team members lacked experience in dealing with clerical and `blue collar' work, and she was of the opinion that they ran an undisciplined `sore thumb' review of evaluation results. She faulted the Team for not establishing a representative and consistent set of Benchmark evaluations at the start of the evaluation process. Furthermore, Ms. Winter believed that the Team's initial ordering of positions by classification levels and by the Commission's evaluation ratings may have biased the overall process. [578] Mr. Willis expressed his opinion that the Team lacked a certain discipline in its deliberations. For example, he felt that the "sore thumb" step should have been more tightly structured. Additionally, he was opposed to the `black box' techniques that Dr. Wolf had used in the evaluation process, techniques drawn from his background in engineering. Mr. Willis also criticized the Team's use of the U.S. Hay job description standard. [579] Mr. Wallace noted that two members of the Team, while being recognized as experts, lacked postal operations experience. He also commented unfavourably on what he regarded as the Team's lack of discipline and rigour in the evaluation process, including the obvious weakness of the "audit trail". [580] The Tribunal notes that the Professional Team had to tackle its assignment in a rather unusual manner. It had, over a relatively short period of time, to sift through literally thousands of pages of documentation and exhibits compiled by others. The evidence indicates that the Team members were not able to adhere to the exact discipline and rigour which would normally be expected in a joint union-management process, where the job evaluation committee would be composed of administrative staff members as well as other employees. The difficulty of evaluating in such a setting was largely off-set, however, by the particular competence of the three-member committee. Two of the members had many years of experience in evaluating jobs using the Hay Plan and other systems. The third member of the Professional Team had been a Canada Post employee, working in management and organization development. Working together, they believed they were able to complete the task assigned. Their Report and Dr. Wolf's viva voce evidence indicated that the Team considered that the process by which it conducted its evaluations, although unconventional, was done with reasonable diligence and discipline. [581] The Tribunal accepts this opinion, and finds that the process, operating in the context of a unique litigious situation, and with an approach dependent upon the competence and experience of the small Professional Team, was reasonably reliable. Inevitably, it was not the superior process which might have resulted had the parties been working in the more usual, co-operative manner. It was, however, in the view of the Tribunal, a reasonably reliable process, given the circumstances under which it was accomplished. [582] This acceptance of the opinion of the Professional Team, and that of Dr. Wolf, in particular, that their evaluation process was reasonably reliable is based upon the Tribunal's finding that the expert evidence of Dr. Wolf is more credible than that proffered by Canada Post's experts, Ms. Winter, Mr. Willis, and Mr. Wallace. Dr. Wolf was present during the process of job evaluation, and participated as a member of the Team. His evidence was factual as well as that of an expert. [583] In giving more weight to Dr. Wolf's evidence, the Tribunal has already acknowledged that the process followed by the Professional Team was by no means of the highest level. [584] The weight, if any, which the Tribunal has given to the expert evidence presented by Canada Post, however, has not been sufficient to overcome the opinion of Dr. Wolf that the Professional Team participated in a reasonably reliable evaluation process. [585] Ms. Winter, a self-made businesswoman and President of her own consulting company, had spent several successful years as an employee of Hay Canada, attaining the rank of Sr. Vice-President and Partner. A sometimes argumentative witness, her opinions in both her viva voce evidence and in her Reports, displayed a tendency to rigidity and a requirement for absoluteness when measuring reliability. [586] Mr. Willis began his job evaluation career with the Hay organization in the United States and formed his own consulting company in 1971. Having developed his own job evaluation plan in 1974, he had handled many job evaluation studies in both the U.S. and in Canada. He provided advice to the JUMI Study Committee that preceded the Treasury Board case. That Committee used the Willis Plan in its job evaluations. [587] Mr. Willis indicated in evidence that he was accustomed to working in a non-litigious and co-operative setting. Although his Report did not so indicate, his viva voce evidence confirmed that he had not read all of the fairly detailed material sent to him by Canada Post. His responses given in cross-examination were somewhat evasive about the amount of time he had spent on the work he was requested to do by Canada Post. While obviously a successful, now-retired consultant, having run his own firm for some 25 years, his manner before the Tribunal was, at times, rather curt. [588] Mr. Wallace began his considerable experience in job evaluation when he participated in the introduction of the Hay system at the Bank of Montreal in the 1970's. He went on to manage the Hay process for Shell Canada and integrated it with Hay world-wide for the parent company, Royal Dutch Shell. He had been Sr. Vice-President of a consulting company since late 1996. [589] Mr. Wallace's mandate was limited to a review of the process undertaken by the Professional Team in 2000, in addressing the impact on its 1993/94 evaluations of the additional evidence that had subsequently arisen from a number of Canada Post witnesses. [590] He presented himself before the Tribunal as someone who had learned, on the job, a great deal about job evaluation and compensation design. His opinion, critical of the Professional Team process, was predicated on industrial standards with which he was familiar and which were, in his opinion, rather strict standards. He gave no deference to the need to give a large and liberal interpretation to human rights legislation. [591] The Tribunal, while giving no weight, for the reasons noted, to Ms. Winter's evidence concerning the evaluation process used by the Professional Team, does not totally dismiss the evidence presented by Messrs. Willis and Wallace. Rather, some of the criticisms expressed by them address features which, under normal circumstances, one would probably prefer not to be present in a job evaluation process. It is, therefore, a question of determining the degree of weight to be afforded. [592] Accordingly, after considering the expert evidence, the Tribunal has given less weight to the evidence of Canada Post's witnesses than it has to Dr. Wolf and the Professional Team. [593] Therefore, the Tribunal finds that it is more likely than not that the evaluation process which the Professional Team used in its work was reasonably reliable. VI. RELIABILITY OF JOB INFORMATION SOURCES AND RESULTING JOB INFORMATION USED BY THE PROFESSIONAL TEAM A. Background [594] All three parties have agreed on the vital importance of using reliable information and data in job evaluation plans of whatever stripe. Canada Post's three expert job evaluation witnesses stressed the need to work with reliable job information and data, although Ms. Winter's opinion encouraged a standard higher than reasonable reliability as her exchange with counsel for the Alliance, in cross-examination, confirmed: Q. So, are you suggesting then, or stating rather, that in order to accurately evaluate positions you need 100 percent job knowledge? A. Yes.176 [595] Both Dr. Wolf and Mr. Willis testified that, in their respective opinions, one's understanding of the jobs to be evaluated (including the quality of the job information) is of first importance. Of second importance is the process to be followed: Dr. Wolf: Even to be a Hay consultant, the amount of time that you need with the job evaluation process is less important than your understanding of the jobs. The rule of job evaluation is like in computers: it is garbage in, garbage out. If you don't understand the job, you can't evaluate it properly, no matter how much you know about the technology of the process.177 Mr. Willis: Next to the quality of the information, I'd say that the process is second in importance.178 [596] As noted earlier in paragraph [413], the generally accepted standard of the job evaluation industry, of which all expert witnesses were aware, is to seek, to the extent possible, accuracy, consistency and completeness of job information being used for job evaluation purposes. Given the Tribunal's decision in this case to apply a reliability standard of `reasonableness' (paragraphs [412], [553]), this calls for reasonable accuracy, reasonable consistency and reasonable completeness. [597] Accordingly, reasonably reliable job information and data is an essential ingredient of job evaluation as a concept, given its inherent dependence on subjective human judgement. Decisions of evaluators who are using reasonably accurate, consistent and complete job information should, understandably, and indeed, logically, produce more realistic and acceptable results than using job information that may be questionable or flawed. [598] Although the Tribunal has already tracked the sources and the nature of the job information used in this case, in excruciating detail, it has decided to re-examine those sources and job information in condensed form in two stages, which the Tribunal has labelled for convenience of reference, as follows: FACTS I: These are the factual job information sources and the job information and data that resulted from those sources that existed prior to the date when the Professional Team began its work for the Alliance. FACTS II: These are the additional relevant data and evidence to which the Professional Team had access once it began its work. B. FACTS I (i) Composition [599] In summary form, FACTS I is comprised of the following: the Job Fact Sheet/Questionnaire which was completed in 1986 by sampled employees; it was designed to relate to the not fully developed System One job evaluation plan, by a senior Commission officer, without professional assistance. Although it was intended to serve as the primary source of up-to-date information for both the CR and the PO positions, it was used by the Commission, in fact, only for the CR positions; the Interview Guide was also designed by Commission staff, and based on System One. It was meant to be completed by Commission interviewers as a follow-up to the Job Fact Sheet/Questionnaire. It was used for the CR employees only; interviews were completed by December 1986; job descriptions and organization charts which were expected to be attached to the Job Fact Sheet/Questionnaire by the incumbent employee completing that form. Most CR job descriptions were "unofficial", including several CR Benchmark position descriptions; many CR organization charts were out-of-date; PO position samples were attempted with new 1989 lists of PO employees without success. In place of samples, 10 `generic' PO job specifications were drawn up in 1990/1991 by the Commission, with Canada Post management personnel supplying the foundation information and materials, including "unofficial" job descriptions, and job profiles which identified responsibilities of each job. These job specifications were developed in a very different manner from that used for the CR positions which were determined by means of what the Commission called a random sample of CR employees occupying actual positions; the 10 `generic' jobs represented an amalgam of functions for 10 commonly held job types in the Postal Operations Group. They did not represent actual jobs or positions and did not have union approval. The PO supervisory sub-group, which constituted an element of the comparator group in the original Complaint, was not represented in the 10 `generic' PO job specifications, in contrast to the CR sample which included some supervisory representatives at the CR-5 level. [600] These were the key sources and the nature of the job information that resulted from those sources during the pre-Professional Team period of 1986 to 1991. [601] Related to these sources and the resulting job information, are four facts which have already been addressed elsewhere in this Decision, but are worthy of note in the context of FACTS I as they have potential impact on the nature of the job information arising from the sources. [602] The first is the uncertainty that surrounds the various unprofessional calculations of the CR sampling size. The original CR sample was developed by a Commission officer in 1986. In 1987, the Commission did not act upon Statistics Canada's advice regarding the CR sample size. The CR sample was subsequently reduced in 1991 by Commission staff. [603] The second is the fact that the Job Fact Sheet and the Interview Guide were both designed around the uncompleted System One evaluation system which had the endorsement of neither the Alliance nor Canada Post. [604] The third is that the job data were gathered at different times. The data for the CR positions were gathered in 1986. The bulk of the data for the `generic' PO jobs was assembled in 1990/1991. [605] The fourth is the apparent incompatibility between the job information collected for the CR incumbent-held positions, and the job "specifications" compiled by the Commission for the non-incumbent-held `generic' PO jobs. [606] The Tribunal notes that it is undisputed by all parties that all of FACTS I occurred well before the Professional Team had been approached by the Alliance or had begun its work. (ii) Submissions of the Parties and Expert Witnesses [607] Focussing exclusively on the FACTS I elements, what were the principal arguments made by the parties and the expert witnesses in their respective submissions, about these elements? [608] There was virtual unanimity between Dr. Wolf and two of Canada Post's expert witnesses with respect to the 1986 Job Fact Sheet/Questionnaire. It was Dr. Wolf who classified this document as `abominable', adding that "...the guy who developed it probably should be taken out and shot", (paragraph [445]). Both Mr. Willis and Ms. Winter dismissed it, Mr. Willis calling it "...hopelessly inadequate for Pay Equity evaluation purposes", (paragraph [497]). Canada Post, too, faulted it on the grounds it was self-evaluative, which was widely held, in job evaluation circles, to be unacceptable. [609] Despite Dr. Wolf's condemnation of the design of the Job Fact Sheet, he testified that he and his two colleagues still made some use of it by disregarding the self-evaluation aspects of the responses and focussing on the "job description information" that could be found in the completed document. In response to a question from Alliance counsel, Dr. Wolf said: So you had to work against the tide, if you will, with these documents unfortunately, but there was information there. You just had to be selective in using it to make sure you didn't pay any attention to the extraneous part.179 [610] Both Mr. Willis and Ms. Winter also faulted the 1986 Interview Guide believing it replicated many of the deficiencies of the Job Fact Sheet while noting that it too, was based on the not-fully-developed System One evaluation plan. Dr. Wolf, himself, testified that the Interview Guide did not add anything of significance to the Professional Team's understanding of the CR incumbents' duties. [611] Dr. Wolf acknowledged that some 50 of the CR job descriptions were unsigned and/or undated, and that others were often out-of-date or "unofficial," and even sometimes missing. Some did not include information on working conditions. Similarly, supporting organization charts were not always available or up-to-date. [612] Two of Canada Post's expert witnesses identified serious deficiencies in the job descriptions primarily in terms of age, accuracy, and official status and all three witnesses stressed the importance of those undertaking evaluations being entirely satisfied with the job descriptions. [613] Dr. Wolf admitted that because of the general unacceptability of the Job Fact Sheet which had been intended as the primary source document for job evaluation purposes, the Professional Team were compelled to rely on the available job descriptions as their primary document for the CR evaluations. He testified that he and his colleagues accepted the job descriptions as they were, provided they were in correct Canada Post format. [614] Dr. Wolf clarified what was meant by treating the job descriptions as the primary document in comparison with the Job Fact Sheet and the Interview Guide, in the following cross-examination exchange with Canada Post counsel: ...when we say primary document, what we are saying is that when there is some question of the consistency of the documents, which one do we defer to, the answer is that we would defer to the Position Description as the official Canada Post document. So when we say it is the primary document, that is the one we would defer to.180 [615] In those situations where there were no position descriptions - and this occurred in a fair number of instances (paragraph [448]) - Dr. Wolf agreed that such a deferment would, obviously, not be possible. [616] Mr. Willis, while recognizing that the PO job specifications came closer to providing factual job information than the CR documentation, cautioned that the former were based on management-supplied, not the more appropriate employee-supplied, job data. Moreover, he pointed out that, contrary to accepted practice, the job data for each of the CR and PO employee groups were collected by totally different processes and at two different periods of time. [617] Ms. Winter faulted the PO job specifications for not reflecting actual positions and being incomplete by not including the job rotational requirements of the PO-4 job level. [618] In considering the first of the four related facts - the uncertainty about CR sampling mentioned in paragraph [602] - it is necessary to turn to the evidence of the two expert witnesses, Drs. Bellhouse and Kervin. [619] There is an appreciable difference of opinion between these two expert witnesses. As noted earlier, Dr. Bellhouse argued that the Commission's original 1986 sampling design, upon which the selection of CR survey incumbents was based, was flawed. He also argued that the Commission's sampling of employees rather than positions led to biases in the sample which were compounded by the level of non-response in the survey for which corrective action was not taken. [620] In particular, under the circumstances of this case, where Dr. Bellhouse understood that the CR classification levels were comprised of overlapping intervals of Hay Plan points, he considered that a full census of each CR position would be the required route. When questioned by Alliance counsel about whether overlapping Hay points and pay based on those points was a compensation rather than a statistical issue, Dr. Bellhouse answered that, given the existence of such an overlap, his recommendation would be a census. [621] During the re-examination of Dr. Bellhouse by Canada Post counsel, Dr. Bellhouse agreed, however, that a full census could be avoided if one were seeking an average value per CR job title instead of per position. One would redefine the CR community by all of its job titles and, assuming a good deal of homogeneity, take an appropriate sample within each job title.181 [622] The Tribunal notes that in earlier evidence relating to the failure of the Commission to implement a Statistics Canada recommendation in 1987 to augment the CR sample, Statistics Canada was commenting on the design of an acceptable random sample rather than a census. [623] With respect to the 10 PO `generic' jobs, Dr. Bellhouse did not regard them as a probability sample. He considered them, at best, to be a "judgement sample" with the possibility of substantial bias because it was a selection of particular job titles (paragraphs [454]-[459]). [624] Dr. Kervin's opinion was that Dr. Bellhouse over-emphasized the analytical nature of statistical analysis and the need for scientific quantitative reliability. Dr. Kervin's point was that Dr. Bellhouse failed to recognize the sociological, qualitative, and systemic issues involved in a "pay equity" case. Dr. Kervin further indicated that the representative sample of CR employees which formed the basis for the collection of data for the Complainant group was more than adequate. He agreed with Dr. Bellhouse that the 10 PO `generic' jobs constituted a "judgement sample" (paragraphs [466]-[468]). [625] The Tribunal is cognizant of the different backgrounds of these two experts. One gave his opinion evidence based upon his expertise as a professional statistician, the other based upon his expertise as a professional sociologist. Dr. Bellhouse, a Professor of Statistics, was qualified as an expert in statistics, with specialization in survey sampling. Dr. Kervin, a Professor of Sociology, was qualified as an expert in data collection and data analysis. As noted earlier, both have had considerable experience in working with paying clients, as well as students, in their respective fields of expertise. Judging from the evidence presented to qualify each as an expert, both are well regarded in their fields. [626] At this juncture, the issue is the reasonable reliability of the sampling methodology and the sample size employed for the CR population. Much of the expert evidence about implementing a "pay equity" study in normal circumstances underlined the need to seek expert advice from professionals. In this instance, expertise in the design and implementation of statistical survey sampling technology was necessary, but not sought initially for the 1986 sample. [627] Dr. Kervin was qualified as an expert in data collection and data analysis. He did not consider himself to be a professional statistician. In response to a question from Commission counsel, he said: I am not a statistician. I don't generate new statistics. I don't look at the properties of statistics. Instead, I use them...182 [628] On the other hand, Dr. Bellhouse referred to himself as a "sampling statistician".183 [629] Mr. Willis testified that the process of selecting the CR sample fell short of meeting the stringent sampling requirements of a "pay equity" case. Although he did not indicate that a census was a necessity, his opinion seemed to be closer to that of Dr. Bellhouse than that of Dr. Kervin. [630] Accordingly, the Tribunal is faced with two conflicting opinions about the CR random sample. Ideally, one would want to re-examine the sampling methodology employed. But, the Tribunal has noted that the original sample of incumbents was a significant one, representing almost ten percent of the total CR population. The Professional Team deliberately chose to evaluate the positions of the full original sample and not limit itself to the Commission's subsequently reduced sample level. Furthermore, there was no solid factual evidence provided to demonstrate that the full sample was unrepresentative of the total CR community. [631] The second related fact (paragraph [603]) concerns the reality that the Job Fact Sheet and the Interview Guide were both designed around the uncompleted System One job evaluation plan. The Professional Team employed the Hay factor comparison plan in conducting its job evaluations. Using one plan to design instrumentation - even if only partially used - and another to undertake job evaluations, is generally regarded, in the industry, as an unacceptable practice. [632] Certainly, the Commission's booklet published in 1992 entitled "Implementing Pay Equity in the Federal Jurisdiction", makes it very clear that "...use of a single plan to evaluate all jobs is essential," (paragraph [358]), which would at least imply, if not explicitly state, that a single evaluation plan should govern all aspects of a particular job evaluation undertaking, including the gathering of job information documentation. [633] The third fact (paragraph [604]) relates to the gathering of job data at different times. The data for the CR positions were collected in 1986, the data for the PO `generic' jobs primarily in 1990/1991. Mr. Willis commented on the desirability of collecting job information for all jobs being compared within a reasonable period of time of each other. [634] The fourth fact (paragraph [605]) concerns the incongruity between the job information collected from incumbent CR employees and the job "specifications" compiled by the Commission for the non-incumbent `generic' PO jobs. Two of Canada Post's experts questioned such an approach. (iii) Credibility of Evidence of Expert Witnesses [635] What has been the position of each of the parties concerning the source materials that make up what the Tribunal has called FACTS I? [636] Canada Post has said, in effect, that the information documented in FACTS I cannot be relied upon to determine reliable job evaluations. [637] The Alliance has questioned the credibility of all three of Canada Post's expert witnesses - Ms. Winter largely on the basis of not meeting the standard of independence of an expert witness, and being too categorical or exaggerated in presenting her opinions; Mr. Willis for not having read all the documentation sent to him by Canada Post, and also on the grounds of either being unable, or refusing, to comprehend the litigious context of the Complaint; and Mr. Wallace for not having had access to much of the documentation involved in the case, and his tendency to highlight the negative while ignoring the positive. [638] The Commission discounted the evidence of Ms. Winter essentially on the basis that she relied on the standard of correctness as the foundation for her expert opinions. Mr. Willis' credibility was questioned by the Commission on the basis of being unclear, even ambiguous and evasive about how long he had taken to review the job materials sent to him by Canada Post. The Commission submitted that Mr. Wallace's critical opinion of the job information should be largely discounted because he did not, nor was he asked, to review most of the job documentation. [639] Insofar as the three Canada Post expert witnesses are concerned, the Tribunal concludes that the evidence of Messrs. Willis and Wallace should not be completely dismissed. Aspects of their evidence deserve some weight. As for Ms. Winter, in the Tribunal's view, her absolutist standard of correctness on virtually all fronts requiring a judgement about reliability, rendered her opinions beyond acceptance. [640] Mr. Willis, however, was a witness with considerable years of experience in the job evaluation industry. Perhaps, he was somewhat evasive, and even acerbic on occasion, as when, for example, in response to a question from Canada Post's counsel, he said: ...the CHRC and PSAC's three consultants were faced with having to do work with inadequate data. I think it was so inadequate that neither one of them could - without additional input, without additional information, I don't see how either one of them could have done a satisfactory job. In my overall analysis, I cannot back down one step: they are both junk...184 [641] Mr. Willis' attitude should not completely overrule his expertise. His service to the Joint Union-Management Initiative, and subsequently as an expert witness on the Treasury Board case, are illustrative of the depth of his knowledge and experience, and his reputation in his field. [642] The Tribunal appreciates the sheer volume of materials that existed in this case. There were over 400 transcripts and about a thousand supporting exhibits alone. Although not all of this documentation was sent to Mr. Willis, he did receive a significant amount of material to review. For an expert witness of the calibre and continental standing of Mr. Willis, some of the documentation in FACTS I, such as that concerning the CR sample methodology, the design of the Job Fact Sheet and the Interview Guide, would have pointed to deficiencies which were readily apparent without having read all the materials. [643] Mr. Wallace also had considerable experience in the field of job evaluation. While his mandate, in this case, covered a more limited aspect and period of time, involving far less documentation than Mr. Willis, his knowledge and depth in applying the objectives and principles of job evaluation, particularly in the private sector, and in "pay equity" situations, were impressive. C. FACTS II (i) Composition and Impact [644] FACTS II constitutes the additional relevant information, data and evidence, beyond FACTS I, to which the Professional Team had access in undertaking its CR and PO job evaluations in 1993/1994 (supplemented in 2000). [645] One such additional item which the Alliance had provided to the Team was Hay documentation which the Commission had originally received from the Hay organization, including Guide Charts and a variety of samples of definitions of Hay evaluating factors. Dr. Ingster advised in correspondence with the Alliance that the Hay documentation had not been tailored for Commission use but was rather general Hay presentational material. [646] The Professional Team also had access, in 1993, to the Commission's Rationale Statements which recorded its ratings, and reasons therefor, for its 1991 job evaluations of the reduced sample of 93 CR incumbents. The Commission's 1991 CR evaluations were based on the XYZ Hay Plan. The Team also drew on its own evaluations of the original 93 sample to provide Reference Positions for its second phase of 97 CR's which it undertook in 1994. Notes taken by Professional Team members during their telephone interviews with CR incumbents conducted in May 1993 and September 1994, were further CR position materials in the Team's possession. [647] For the PO community, the Professional Team had access to behavioural dimensions for each job which the Commission had obtained from Canada Post as well as the Commission's Rationale Statements indicating its 1991 job evaluation ratings, and reasons therefor, of the 10 `generic' jobs based on the XYZ Hay Plan. Dr. Ingster had advised, however, in his letter of July 21, 1993 to the Alliance, that the behavioural dimensions and job profiles had not been provided for four of the 10 PO `generic' jobs. [648] A Commission-prepared document was also furnished which included descriptions of the knowledge and skill, problem solving, responsibility and working conditions characteristics of the 10 PO `generic' jobs. Finally, the Team also referred to a variety of Canada Post operator handbooks, postal guides and related materials. [649] Subsequent to the Professional Team's 1993/1994 CR and PO job evaluations, there was, in 1997, newly-found CR documentation which included several, but not all, of the previously missing job descriptions. However, Dr. Wolf, on behalf of the Team, concluded that this additional material was not significant enough to re-evaluate the Team's earlier evaluations. [650] In the year 2000, the Professional Team undertook a review of the possible impact on its 1993/1994 job evaluations of a considerable amount of evidence which had been submitted to the Tribunal during the period of 1995 to 2000, by a number of Canada Post witnesses. [651] This voluminous new evidence consisted of approximately 4,000 pages of written material including transcripts of many days of testimony-in-chief and of cross-examination concerning job content, primarily for the 10 `generic' PO jobs. A considerable number of exhibits were also involved such as Canada Post manuals, handbooks and training materials. Several other exhibits were provided by the Alliance and the Commission. [652] Dr. Wolf screened this extensive documentation and extracted material that he considered was not relevant to job evaluation. The balance was then referred to the full Professional Team. Canada Post's counsel questioned whether this was an acceptable practice to discard material before it had been seen by his two colleagues. [653] Dr. Wolf indicated in his evidence that he and his two colleagues had concluded, based on this new material, that each of the 10 `generic' jobs probably described few, if any, of the many incumbents of those jobs. Few, if any, would be performing all of the duties described. In response, and in fairness to all incumbents, Dr. Wolf and his two colleagues chose to re-evaluate the 10 `generic' jobs based on the assumption that all incumbents were performing all of the respective duties concerned. [654] The Professional Team concluded that the new evidence had no impact on their CR evaluations but had some impact on their PO `generic' job evaluations. For example, Dr. Wolf testified that: ...the range of content within any one of the PO jobs was much greater than we had originally realized. The 10 jobs really represent many more than that.185 [655] Dr. Wolf reported that several changes in evaluation point values resulted from the re-evaluation of the 10 `generic' jobs. Five of the PO `generic' jobs had no changes in their evaluation point values, and three jobs had minimal changes of three points or less. Two `generic' jobs had significant changes in point value. The Counter Clerk `generic' went up in value while the Relief Mail Services Courier `generic' went down in value. [656] Consequently, FACTS II provided the Professional Team with a fair amount of additional job information, data and background material to that provided by FACTS I. The question, therefore, arises: how useful did this FACTS II additional job information and background material prove to be? [657] Undoubtedly, it added to the Professional Team's overall perspective of the nature and work of the employee groups involved in the Complaint. While a good portion of the new material related solely to the Postal Operations Group (PO) of employees, there was also additional material covering the CR community. [658] For example, the Professional Team's CR employee telephone interview notes served as new material which was helpful in providing a focus on the working conditions factor of the CR positions involved. [659] As already noted, Dr. Wolf confirmed that the Professional Team's review of the newly found CR documentation in 1997 was not sufficiently significant to re-evaluate the Team's earlier evaluations. On the other hand, the Team's review of the new evidence arising from the Canada Post witnesses over the period 1995 to 2000 did result in major changes in evaluated point values for two of the 10 PO generic jobs. [660] All told, the Tribunal finds that the evidence supports the view that while much of the new job information and background materials that made up FACTS II did not add a substantive new dimension to the core job information base of FACTS I, it did augment and fortify the Professional Team's understanding of the jobs and positions to be evaluated. D. FACTS I and II Compared to Reliability Standard of the Job Evaluation Industry [661] How did the job information and data of FACTS I and II measure-up to the generally accepted standard of the job evaluation industry, as described in paragraph [596]? In other words, how reasonably accurate, how reasonably consistent and how reasonably complete were the job information/data used by the Professional Team (FACTS I and II) in undertaking its job evaluations in 1993/1994 (supplemented in 2000)? [662] The deficiencies already well documented above in the job descriptions which the Professional Team came to regard as their primary source documents for the CR positions are, perhaps, one of the best illustrations of a general lack of accuracy, consistency and completeness. Dr. Wolf, himself, acknowledged the many deficiencies including out-of-date, incomplete, unofficial and even missing CR job descriptions. [663] Canada Post was supported by Mr. Willis and Ms. Winter in commenting on the lack of accuracy, consistency and completeness in many of the CR job descriptions, noting that generally they did not include information on working conditions. Mr. Wallace also stated in his report that there was a "...lack of complete and consistent documentation".186 [664] Even the Commission cautioned about the use of job descriptions in its booklet on implementing "pay equity", as follows: ...job descriptions should not be used on their own or treated as the primary source of data, since they often replicate prevailing stereotypes and are not always an up-to-date, accurate reflection of work done, (paragraph [358]). [665] An inconsistency also occurred in the use of the Interview Guide with CR incumbents. Certain changes in its original design, proposed by a representative of the Alliance, were accepted by the Commission after interviews had already begun, resulting in two versions of the Interview Guide having been in the system. [666] Questions of inconsistency and incompleteness also arose in evidence about the CR sample which included supervisors at the CR-5 level, while the PO supervisor's sub-group had been dropped by the Commission from the PO `generic' jobs. Similarly, lack of consistency was expressed over the appreciable difference in the dates of information collection - 1986 for the CR's and 1990/1991 for the PO `generic' jobs. Mr. Willis, for example, indicated that all data involved in job evaluation should, ideally, be collected during the same time period and as near as practicable, to the date of performance of the job evaluations. He considered this to be important because of the tendency of jobs to change over time. [667] The Alliance and the Commission did not really directly address the industry standard of attaining reasonable accuracy, consistency and completeness of job information used in job evaluation undertakings. Both parties tended to discredit the evidence, in this regard, of Messrs. Willis and Wallace on the basis of not having read all the relevant documentation and not having performed CR and PO job evaluations themselves. They contended, therefore, that the opinions of Messrs. Willis and Wallace were based on incomplete information, and should be rejected. As only Dr. Wolf and his two colleagues had worked through all the job documentation and actively performed job evaluations, the Commission and the Alliance urged that Dr. Wolf's opinions be accepted. [668] Interestingly, Dr. Wolf openly acknowledged particular inaccuracies, inconsistencies and incompleteness in job information, which were referred to above. E. Tribunal's Analysis (i) A Daunting Task [669] In undertaking this final analysis of the job information used in this case, the Tribunal is reminded of the following two factors which were observed earlier in this Decision. [670] Both Dr. Wolf and Mr. Willis confirmed that in conducting job evaluations, the quality of the job information and one's understanding of the jobs are paramount, out-matching either the evaluation plan or the process involved. [671] The Alliance and the Commission chose to rely exclusively on the Professional Team's job evaluations performed in 1993/1994, (supplemented in 2000), to substantiate the Complaint. In effect, the Alliance and the Commission have asked that the Commission's job evaluations performed in each of 1987 and 1991 be ignored in favour of those conducted by the Professional Team. What cannot be ignored, however, is the fact that a portion of the source materials used by the Team to conduct its evaluations was, essentially, the information that the Commission had employed in its own earlier evaluations, that is FACTS I. [672] The Tribunal's assessment and weighing of the evidence submitted by each of the parties and expert witnesses concerning this issue of the reliability of the job information has been a daunting task. [673] There is little doubt that the job information (FACTS I and II) employed by the Professional Team in conducting its job evaluations did not meet the standard that one would normally expect from a joint employer-employee "pay equity" study. But, given the somewhat painful and prolonged circumstances of the case before this Tribunal, was the job information "good enough", on a balance of probabilities, to generate reasonably reliable job/position values that, in turn, could be used to demonstrate whether or not there was a wage gap? [674] Dr. Wolf, as spokesman for the Professional Team, acknowledged that he and his two colleagues found many shortcomings in the available job data. But he also said that their job understanding was "...adequate but not necessarily ideal..." (paragraph [484]). [675] By "adequate", the Tribunal suggested in paragraph [486], one might consider "sufficient" as an acceptable synonym. [676] The Tribunal sees little value in attempting to attribute blame for the state of the job information but notes that the Alliance counsel in his final oral argument stated the following: If we have less than an ideal view of the PO work, I suggest to you that, in large measure, that has been caused by decisions made by Canada Post.187 [677] At the same time, the Tribunal notes that section 43 of the Act furnishes the Commission with certain powers to obtain relevant documentation from a respondent while conducting its investigation of a complaint. Hence, the Tribunal accepts that the Commission, and perhaps even the Complainant, could also be held partially accountable for the job information available in this case. [678] Another aspect which the Tribunal believes deserves mention and over which the Professional Team had no direct input relates to the CR sample. While the conflicting positions of expert witnesses Drs. Bellhouse and Kervin have been documented above, it is helpful to note the following final oral argument made by the Alliance's counsel which adds yet another dimension to that issue: I will point out one factor that you might consider, however, and that is that when you are looking at the data, one of the things that stuck in my mind, the representivity of the data, you go back to the root cause of the alleged problems with the CR sample, and the problem comes from the fact that Canada Post gave the Commission an out-of-date employee list. That is the origin, that is the genesis of the need to go and get other employees. I am not going to tell you that the Commission was perfect in what they did, but nor was Canada Post. It certainly would be inequitable for Canada Post to now come to the Tribunal and say that you can't rely on the data when they were responsible for providing the information to the Commission.188 [679] To answer the question of whether or not the job information was reasonably reliable, the Tribunal found the following excerpt helpful: In Anglo-Canadian law ... the courts have consistently held that if the plaintiff establishes that a loss has probably been suffered, the difficulty of determining the amount of it can never excuse the wrongdoer from paying damages. If the amount is difficult to estimate, the tribunal must simply do its best on the material available, though of course if the plaintiff has not adduced evidence that might have been expected to be adduced if the claim were sound, the omission will tell against the plaintiff. In Ratcliffe v. Evans, Bower L.J. said: As much certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry.189 [680] While the aforementioned excerpt relates to the law of damages, the Tribunal finds that it addresses an approach that may be analogous to what the Tribunal considers to be the spectrum of reasonable reliability. The Tribunal has already accepted (paragraph [596]) that a standard of `reasonableness' should apply in determining the reliability of the job evaluation system chosen, the process followed and the job information used. An absolutist standard of `correctness' has been dismissed as has the evidence of Ms. Winter on these same grounds. [681] The publication of Professor Waddams, cited above, to which, interestingly, both the Commission and the Alliance made reference in the context of their submissions on Remedy, refers to the need for a tribunal, in determining damages, to "do its best on the material available," because the difficulty of determining the amount of damages "can never excuse the wrongdoer from paying damages." The citation goes on to state from the Ratcliffe v. Evans case that to insist upon more than reasonable certainty in pleading and proof of damage "would be the vainest pedantry," and to insist upon less "would be to relax old and intelligible principles".190 [682] In other words, absolutism should probably be avoided at both ends of the spectrum. A standard of 100% correctness is unacceptable at the top end of the spectrum as is a standard at the lower end which simply dismisses everything as being entirely worthless. This conception of a spectrum is certainly relevant to the Tribunal's decision concerning the reasonable reliability of the documentation used to conduct the evaluations in this Complaint. [683] In view of the circumstances of this particular case and the remedial nature of human rights legislation calling for a purposive, broad and liberal interpretation, the Tribunal finds that a similarly broad and liberal approach, using the analogy of the spectrum, is appropriate to a decision concerning the reasonable reliability of the job information. While the job information may not meet the degree of reliability that should normally be sought for a "pay equity" situation, is it "adequate", as Dr. Wolf indicated it was, for this specific situation? Alternatively, should the job information used by the Professional Team, with its various deficiencies, be dismissed as being entirely worthless, and as absolutely without merit, along the lines of Mr. Willis' opinion? [684] The Tribunal believes these questions are best answered in the context of the total job evaluation undertaking - that is the job evaluation plan selected, and above all, the evaluators involved. [685] Given the very considerable job evaluation experience of Drs. Wolf and Ingster of the Professional Team, including their application, over many years, of the Hay system to a wide-range of jobs involving a variety of job information, the Tribunal considers that their opinion concerning the reliability of the available job information was particularly compelling. [686] Moreover, Dr. Wolf was not hesitant to identify deficiencies in instruments such as the Job Fact Sheet and certain job descriptions. He also demonstrated an ability to adapt to the situation before him as illustrated in his remarks about being "selective" in using data included in the Job Fact Sheet (paragraph [609]). He obviously knew how to avoid the most offensive aspects of that document. He and his two colleagues were therefore very aware of the imperfections, including certain inconsistencies and even incompleteness, in the job information, but still concluded that the material was "adequate" for the work being performed by the Professional Team. [687] The Professional Team also benefited from the augmentation of the FACTS I base data by means of the FACTS II material. Examples include the new working conditions information that arose from the telephone interviews with the CR sample members contacted. Another, was the re-evaluation of the 10 PO `generic' jobs in the year 2000 based on considerable new evidence from a number of Canada Post witnesses, resulting in two significant job value revisions. [688] In responding to a question from Alliance counsel about his "comfort level" with the overall evaluations performed by the Professional Team, Dr. Wolf replied as follows, implying that the job information was at least adequate: I feel that these evaluations are valid representations of the particular jobs at hand. I wouldn't have evaluated the job if I didn't feel we could evaluate it in a meaningful and appropriate way. That's why we punted on the four we punted on, because we felt we just couldn't accurately evaluate those jobs.191 [689] The Tribunal must confess that navigating the job information through the straits of "reasonable reliability" has not been a relaxing passage. Yet, balancing the evidence presented by all parties and expert witnesses, and under the unique circumstances of this case in the realm of proscribed discrimination human rights legislation, the Tribunal finds that the job information, in the hands of the Professional Team, was more likely than not, "reasonably reliable", or "adequate" as that Team described it, despite certain imperfections. (ii) Definitions and Sub-bands of Acceptability [690] Recognizing the significance of this conclusion, the Tribunal wishes to record how it decided to handle what it considers to be one of the most challenging aspects of this case. To assist itself in analysing the many facets of the available job information and testing for the "reasonable reliability" of that information, the Tribunal found it necessary to re-examine the definitions with which it was working. [691] Firstly, the expression used by Dr. Wolf in describing the Professional Team's job understanding was " ... adequate but not necessarily ideal...". The Tribunal drew on Webster's and Oxford's definitions of the word "adequate" in paragraph [485]. Both dictionaries included "sufficient" as one of their definitions of "adequate". In turn, both dictionaries have defined "sufficient" as being "adequate" or "enough". The word "ideal" is defined by Webster as "a standard of perfection or excellence", and by Oxford as "conceived as perfect in its kind". [692] How do these definitions compare to the meaning of "reasonably reliable"? Webster defines "reasonable" as "not exceeding the limit prescribed by reason, not excessive, moderate". Oxford defines "reasonable" as "not going beyond the limit assigned by reason, not extravagant or excessive, moderate". Webster defines "reliable" as "consistently dependable in character, judgements, performances or result". Oxford defines "reliable" as "in which confidence may be put, trustworthy, safe, sure". [693] "Reasonably reliable" job information can therefore, be interpreted as being job information that is consistently, moderately dependable or in which moderate confidence can be put. The words "adequate" and "sufficient" are interchangeable. While some might consider "consistently, moderately dependable" or "moderate confidence" to be more demanding than "adequate" or "sufficient", in terms of the level of quality, the Tribunal concluded that they are generally equivalent for the situation at hand. [694] Accordingly, the Tribunal regarded the term "reasonably reliable" and the words "adequate" and "sufficient" as being interchangeable for the purpose of determining the state of reliability of the job information available in this case. Obviously, the word "ideal" sets a standard of correctness well beyond the standard of "reasonable reliability". [695] Having clarified the terminology governing the standard of reliability, the Tribunal concluded that it is more likely than not that there is no one exact point that represents "reasonable" reliability, or "adequate" reliability. Rather, it is more likely than not that a range or band of acceptability represents what is meant by "reasonable" or "adequate" reliability. Some candidate items may fit more comfortably than others within that band, but all that pass the test of entry are considered to be reasonably or adequately or sufficiently reliable. [696] While the Tribunal concluded that it is difficult, and probably unwise, to attempt to be quantitatively precise about the width of the range or band of acceptability, it found that it was administratively useful to think in terms of three possible sub-bands. The first sub-band represents the upper percentiles of the band, the second sub-band represents the mid-percentiles, and the third sub-band the lower percentiles. The Tribunal called these respectively, "upper reasonable reliability", "mid reasonable reliability" and "lower reasonable reliability". [697] In undertaking its study of the massive sea of material and testimony of this multi-year case, the Tribunal evolved to the view that ultimate fairness to all parties in a "pay equity" case would probably be achieved when the quality of the job information concerned fell comfortably into the "upper reasonable reliability" sub-band. The higher the sub-band level within the band of "reasonable reliability", the higher the quality and the more accurate the eventual values attributed to the jobs and positions involved - at least in theory. [698] Thus, while all three sub-bands meet the test of "reasonable reliability", the upper sub-band meets the test more abundantly and should, in the Tribunal's view, be the preferred choice for a "pay equity" situation. [699] At this point, the Tribunal asked itself, into which sub-band would it place the job information which the Professional Team employed in this case? Given the number of reservations and imperfections in the available job information already identified in the foregoing review, the Tribunal concluded that that information could not be comfortably classified as "upper reasonably reliable". Nor was the Tribunal content to accept the job information as fitting, however tightly, into the "mid reasonably reliable" sub-band. The Tribunal did, however, agree that the most suitable home for the job information was the "lower reasonably reliable" sub-band. [700] Hence, the Tribunal found, as stated in paragraph [689], that it was more likely than not that the job information utilized by the Professional Team in conducting its job evaluations of the CR and PO positions/jobs pertinent to this case, was reasonably reliable, albeit at the "lower reasonably reliable" sub-band level. VII. WAGE GAP AND WAGE ADJUSTMENT METHODOLOGY A. Introduction [701] Having found that it is more likely than not, that the "off-the-shelf" Hay Plan being used in the traditional factor comparison methodology, the process followed and the job information utilized by the Professional Team in conducting its CR and PO positions/jobs evaluations were reasonably reliable, the next questions to be addressed are: How reliable were the resulting job evaluation values attributed by the Professional Team to the CR positions and PO jobs concerned? Was a "wage gap" demonstrated between the female and male predominant groups performing work of equal value? [702] The Tribunal has already established the credibility of the three members of the Professional Team, having noted their qualifications in paragraph [382]. More particularly, Dr. Wolf was qualified as an expert in Hay-based job evaluation and Hay-based compensation. [703] Accordingly, the Tribunal concludes that it is more likely than not that the aforementioned reasonably reliable Hay Plan, process and job information, in the hands of competent evaluators, as were the Professional Team, would result in reasonably reliable job evaluation values being attributed to the work performed by CR and PO employees. [704] The Professional Team in its Final Report on the Hay Method Evaluation concluded: Having found that a substantial portion of the CR jobs are of a value equal to, or greater than, that of the PO jobs, the logical next step was to identify the nature of the wage gap, if any, between the male-dominated PO jobs and the female-dominated CR jobs.192 [705] In comparing its CR and PO job evaluation values with CR and PO hourly compensation rates, the Professional Team stated in its Report (Exhibit PSAC-30), that it did so for each of three years: 1983, representing the year the Complaint was filed; 1989, the year the Commission used for its wage analysis, and 1995, the year of the Professional Team's Report. The hourly wage rates were supplied by the Alliance and were assumed to be correct. The top rate was used in all cases. [706] As its wage adjustment methodology, the Professional Team employed a level-to-line method in which a male wage line was developed against which female pay rates were compared. The Team used this level-to-line approach because it is an indirect comparison frequently used in "pay equity" situations involving large organizations as distinct from a direct job-to-job approach. The male wage line represents a "pattern" of male jobs plotted on a graph, using total job evaluation point values as one axis of the graph and wages as the other. Once this is done, the intersection of point values and wages for the female jobs, plotted similarly using the same graph, is compared to the male line at particular intersection positions. [707] The Professional Team developed eight different male wage or pay lines which it designated Approaches A to H inclusive, including one for each of PO-INT jobs (Approach A), PO-EXT jobs (Approach B), and an average of PO-INT and EXT jobs (Approach E), for each of the three chosen years. One job-to-job comparison was also undertaken, or "position matching" as the Team called it (Approach H). [708] Analyses by the Professional Team of the pay relationships between the male-dominated PO jobs and the female-dominated CR positions revealed a wage gap no matter which level-to-line method was used. A similar result occurred with the "position matching" approach. These findings were equally true for each of the years 1983, 1989, and 1995. [709] The Professional Team concluded that "all of these approaches show a significant gap between the wages paid to CR's and to PO's performing work of equal value".193 Although there were differences in the size of the wage gap across the various approaches, the Professional Team characterized these differences as "relatively minor." [710] From a compensation perspective, the Professional Team's expert opinion was that the best measure of the pay discrepancy between the PO and CR jobs/positions was based on the PO-INT male wage line (Approach A) or the "position matching" option (Approach H). The Team felt this was so because the INT jobs seemed to be a closer match to the CR positions in terms of job content. B. Submissions of the Parties (i) The Alliance [711] The Alliance submitted that once a wage gap has been established, it is necessary to decide upon the most appropriate method of closing it between the CR's and the PO's. It also submitted that closing the gap is best done by means of employing a "wage adjustment methodology". [712] Of the eight male pay lines drawn up by the Professional Team, the Alliance's preferred approach was an adjustment to the average of the INT and EXT pay line - Approach E - because the Alliance felt it best represented the pay practices of the male comparator group. As already noted, the Professional Team's preference was the INT pay line (Approach A) though it accepted that Approach E was also workable. [713] The Alliance's witness, Mr. Terrence Ranger, whose evidence was heard in November 1995, supported the Alliance's position. The Tribunal was not asked to qualify Mr. Ranger as an expert witness. [714] Mr. Ranger stated that he was, at the time he gave his evidence, employed by the Alliance as Section Head of Research in the Collective Bargaining Branch. This branch included six research officers who served on negotiating teams and provided background support for bargaining demands. The officers also undertook compensation analysis in the areas of direct wages and benefits such as pension, dental and health care plans. He was first engaged by the Alliance in 1976 as a senior research officer. He confirmed that he had been called as a witness before the tribunal which handled the Treasury Board case.194 There, he had been asked to calculate the monies required to close a wage gap that had been determined by one of the statistical consultants involved in that case. [715] Mr. Ranger testified that he had reviewed Dr. Lee's Report195 and the Professional Team's Reports196, and had, as his objective, to cost for each year of the Complaint, the payments that would be necessary to close the wage gaps that had been determined by the Professional Team in its eight different approaches. Since the Team's calculations had been limited to the years 1983, 1989, and 1995, Mr. Ranger indicated that he produced pay lines based on the Team's methodology for each of the years from 1981 to 1995. The starting year of 1981 reflected the year that Canada Post became a Crown Corporation. He used what he called "annual equivalent" direct wage rates for each 12-month period and excluded "indirect wages" from his calculations in line with Dr. Lee's conclusions. [716] In effect, Mr. Ranger testified, he had replicated what the Professional Team had done, using the same methodology, with the addition of employee population levels. These, he understood were Canada Post numbers which had been obtained either by the Alliance or directly from the Agreed Statement of Facts. For the years 1981 to 1985, he assumed the population figures would be the same as for 1986. Mr. Ranger then multiplied the wage gap identified by the Professional Team for each of the eight approaches, by the number of working hours per year and by the number of employees concerned. [717] Mr. Ranger's conclusion was that the Professional Team's Approach E - the average of INT and EXT male pay lines - offered the best representation of the comparator population and therefore, the most appropriate remedy for this case. He recognized that the payout would be less under Approach E than under the Professional Team's preferred Approach A. [718] Mr. Ranger cautioned that the employee population data he used should be regarded as "estimates" as the data were taken at particular points in time and were assumed to be full-time employees for the entire 12-month period. In reality, some full-time employees may not have been employed in a given position for the full 12 months of a year, and some are believed to have been part-time employees. Consequently, this would, Mr. Ranger indicated, impact on his costing. [719] Mr. Ranger went on to testify that the total possible wage gap payout to CR employees that he had calculated as being just over $124 million (excluding "indirect wages"), should be regarded as "an estimate", and maybe even "...a ballpark estimate that's on the high side". [720] He also testified as follows: I am not suggesting that the $124 million be the settlement cost; it is some indication of the global costing of this complaint, but I don't think that anyone here could come up with that amount. I think that what should be identified are the hourly amounts that are required and then each individual employee will receive the amount that is due to them based on those hourly amounts and the amount of time they worked during the period. The final cost in fact won't be known to us, to anybody, until all of this is implemented.197 [721] When he was cross-examined by Canada Post's counsel, Mr. Ranger agreed that any equal pay adjustments should be "pay for all purposes". He explained that this meant the adjustment would also include any statutory remittances that Canada Post might have to make arising from the basic adjustment. He cited examples such as the employer's obligations involved in items like superannuation, employment insurance and health tax. Although these would add to Canada Post's costs, they had not been quantified by Mr. Ranger. [722] The Alliance was strongly supportive of the "pay for all purposes" concept and submitted that monies payable to CR's to close the wage gap must be so classified. Appropriate adjustments would have to be made to reflect the cost of such statutory remittances. [723] Under further questioning by Canada Post's counsel, Mr. Ranger confirmed that for purposes of his wage gap calculations he used the maximum wage rate allotted in the range of wage rates for a given position or job. Although positions or jobs with particular evaluation points will fall into specific wage bands and incumbents may be earning different rates within a given band depending on length of time in that position or job, for Mr. Ranger's quantification of the cost of closing the wage gap, he assumed each job or position was paid at the highest level allowed. [724] The Alliance also submitted that the "fold-in" principle should be implemented at the time of the wage adjustment to close the wage gap. The submission was that, as of the date of the final Tribunal Decision, an adjustment would be made to the base wage rates in the CR collective agreement such that wages for CR's would be the same as wages for PO's for work of equal value. The adjustment would be folded into the base CR wage rate. [725] As an alternative to Mr. Ranger's endorsement of the Professional Team's wage adjustment methodology, the Alliance submitted that the job-based methodology of Dr. Kervin would be acceptable for this case. The Alliance considered that Dr. Kervin's approach produced very similar wage gaps to those found by the Professional Team and Mr. Ranger. [726] In conclusion, the Alliance submitted that the final actual costing of the wage gaps will require additional work. For example, an examination of individual employee records held by Canada Post will be necessary. Additionally, the Professional Team's changes in certain PO job evaluations, arising from its review, in June 2000, of the evidence of Canada Post witnesses, will impact on wage gap calculations. These changes were identified in the Professional Team's Report (Exhibit PSAC-180). (ii) The Commission [727] The Commission submitted that an award of lost wages is warranted to address the wage gap that has been demonstrated to exist between the CR and the PO employee groups in this case. It was also submitted by the Commission that the most appropriate wage adjustment methodology to use in calculating this particular award is a level-to-line approach using a combined male line such as the Professional Team's Approach E. [728] It was noted by the Commission that most "pay equity" cases which are systemic in nature involve occupational groups which do not always lend themselves to direct comparisons of the value of the work performed. In the instant case, since the jobs of the PO-INT and PO-EXT sub-groups do not provide direct comparators for the CR positions, the Commission submitted that, as permitted by section 15 of the 1986 Guidelines, an indirect comparison between female and male work must be used. This, argued the Commission, involves the construction of a male pay line using regression analysis. [729] The Commission also argued that such an indirect comparison, by means of the level-to-line wage adjustment methodology, would be compatible with what Drs. Wolf and Kervin and Mr. Ranger had recommended. It would also be consistent with the approach taken in the Treasury Board case.198 [730] The male pay line, according to the Commission's submissions, should combine all relevant male data available. This would best be accomplished using Approach E from the Professional Team's options. It would also accord with the choices of Dr. Kervin and Mr. Ranger, and is consistent with section 14 of the 1986 Guidelines. That section notes that when a comparison is made between the occupational group that filed a complaint alleging a difference in wages, and other occupational groups, those other groups are deemed to be one group. [731] The Commission submitted that the most appropriate wage adjustment approach for the female job values was one based upon a level as opposed to a female wage line. Hence, the level-to-line designation. Dr. Wolf and Mr. Ranger had based their female level on the average of the evaluation scores of the positions within each CR level. [732] The Commission submitted that, while neither it nor the Alliance had the ability to determine which positions comprised the jobs for the CR sample, Canada Post in May 1999 provided, through its witness Mr. Brian Wilson, a Report on rolling-up the evaluated CR positions into jobs.199 Mr. Wilson, a Canada Post retiree since late 1995, had spent over 30 years with the company, having started as a letter carrier and moved progressively through the labour relations and human resources supervisory and management ranks. [733] It was the Commission's submission that Dr. Mark Killingsworth, another of Canada Post's witnesses, then determined the average values of these jobs, using the evaluated CR positions and their gender predominance from Mr. Wilson's material. The Commission argued that it was from Dr. Killingsworth's determinations that Dr. Kervin, the Alliance's witness, was able to provide his expert advice on how to calculate the level-to-line "pay equity" adjustments. [734] Dr. Killingsworth was qualified by the Tribunal as an expert witness in labour economics including econometrics. He obtained his Bachelor of Arts degree "with high distinction" in Economics from the University of Michigan in 1967. He then attended Oxford University on a Rhodes Scholarship, earning a B. Phil in Economics in 1969 and his D. Phil in Economics in 1977. At the time of his first appearance before the Tribunal in May 1999, he was Professor of Economics at Rutgers University in New Jersey, a position he had held since 1988. He was also serving as Research Economist for the National Bureau of Economic Research, having been in that post since 1984. He is the author of a number of publications on Comparable Worth (the U.S. term for "pay equity") and has undertaken considerable research in that and related fields. [735] Because Dr. Kervin's analysis involved the use of CR jobs rather than CR positions, this is the Commission's favoured approach. The Commission argued that many experts agree that the preferred unit of analysis for equal pay studies is "jobs". A "job" is a collection of duties usually performed by several or many individual employees occupying "positions". [736] Whether the "jobs" or the "positions" approach was used to calculate the female level, the Commission submitted that the level-to-line methodology was preferable in this case. It does, however, assume that each level is based on a representative sample of predominantly female jobs. The Commission reminded the Tribunal that Dr. Kervin's expert opinion was that the CR sample was adequately representative. [737] The Commission's submissions underlined the use of the Hay Plan, whereby the random-sampled CR positions were evaluated in accordance with the four factors of skill, effort, responsibility required in the performance of the work, and the conditions under which the work was performed, as called for in subsection 11(2) of the Act. This resulted in the range of job values for each of the CR levels. [738] The Commission concluded that Dr. Kervin's and Mr. Ranger's methodologies, both involving a composite male pay line, were the most appropriate. Accordingly, the Commission submitted two sets of calculations of adjustments required for each CR level to achieve equal pay for work of equal value for the years from 1981 to 2002. [739] The first calculation was based on Dr. Kervin's methodology using the Professional Team's evaluation job values, under which he had determined a wage gap for the year 1995. From this base year, the Commission extrapolated wage gaps for each of the other years. The second calculation was that of Mr. Ranger's whose wage gap determination by CR level by year, was based upon the methodology employed by the Professional Team. [740] The Commission indicated that the wage rates used in its wage adjustment calculations were based on those recorded in the relevant collective agreements. Specifically, the wage rates for the years 1981 to 1994 were those stipulated in Mr. Ranger's Report. Those for 1995 were drawn from the Professional Team's Reports. Those for the years 1996 to 2002 were taken directly from the collective agreements by the Commission, since neither the Professional Team nor Dr. Kervin provided calculations beyond 1995. [741] The Commission indicated that while both Dr. Kervin's and Mr. Ranger's calculations provided satisfactory estimates of the wage gap for any given year, it preferred Dr. Kervin's wage adjustment estimates. Reasons for this preference included Dr. Kervin's use of an average job value in each CR level as opposed to the average position value of Dr. Wolf's team. Also the Commission considered Dr. Kervin's calculations to be more accurate and up-to-date than those of Mr. Ranger. [742] The Commission acknowledged that both sets of calculations represented wage gap estimates only and the determination of actual payouts for individual CR employees must, of necessity, be subject to the examination of employee records with appropriate employer input. [743] While the Commission argued that tribunals do not determine total individual payouts, the Tribunal, should it find the determination of evaluated job values to be reasonably reliable, must decide which wage adjustment methodology is appropriate, given the circumstances of the case. [744] The Commission indicated its agreement with the Alliance's "fold-in" principle that, in making any back-pay adjustment, it would be folded into the CR base wage rates in its collective agreement200 [745] The Commission was also supportive of the "pay for all purposes" concept and submitted that: ...it is essential that the pay equity adjustments include not only adjustments to base salary, but also for all purposes, i.e. pensions, overtime, sick leave, acting pay, and long term disability payments.201 [746] The Commission did, however, accept the expert evidence of Dr. Lee in concluding that there was no material difference between the non-wage compensation of CR's and PO's, based on current contracts for full-time employees. Dr. Lee had reviewed the "historical differences" for the previous 12 years and concluded that they could not be calculated reliably without a complete file of employee experience for each benefit provision. Where differences did exist, Dr. Lee considered them to be minor and, in most cases, without a wage equivalent value of significance for "pay equity" purposes. Therefore, Dr. Lee had presented his opinion that there was no overall difference in non-wage compensation that should be incorporated into the calculation of wage adjustments that would favour either the CR's or the PO's. [747] It was also the Commission's submission that the exclusion of the PO-SUP subgroup of jobs from the PO occupational group during both the Investigation Stage and the subsequent "pay equity" process, had no bearing on the reasonable reliability of the wage adjustment methodology. [748] The Commission urged the Tribunal to retain jurisdiction after submitting its Decision, to assist the parties as may be appropriate, in the event difficulties are encountered at a later date in determining the specifics of individual payouts. (iii) Canada Post [749] Canada Post submitted that the question of Remedy, including the wage adjustment methodology need not arise if the Tribunal were to decide in Canada Post's favour and dismiss the Complaint for one or more of the reasons it had already argued. However, Canada Post did choose to respond to the submissions of the Alliance and the Commission on remedial issues. [750] Canada Post argued that the importance of a remedial award and its impact on all parties demands a high degree of confidence in the methodology used to determine any wage adjustments. In this regard, Canada Post considered the Alliance's wage adjustment calculations to be "exaggerated in every respect". Canada Post estimated that based on Mr. Ranger's methodology, the total award would be approximately $2.4 billion, and approximately $443 million based on Dr. Kervin's methodology. [751] It was noted by Canada Post that the Alliance's submission and Mr. Ranger's calculations were based on the Professional Team's wage adjustment analysis which included development of a regression line for the male jobs by fitting a line through the PO data points manually by eye, using a ruler. The pay line was then extended beyond the range of the PO data by extrapolation which Canada Post stated was not considered an acceptable technique by the Equal Pay Division of Labour Canada. [752] It was Canada Post's submission that there were four significant flaws in the Professional Team's wage adjustment analysis that rendered it inadequate as a basis for calculating appropriate wage adjustments in this case. [753] The first flaw, in Canada Post's opinion, was the manual setting of the male pay lines. Dr. Wolf had testified that while there is a difference of opinion among statisticians as to the minimum number of observations required for the proper use of regression analysis, most regard less than 25 to 30 to be questionable. Dr. Wolf and his two colleagues had five PO-INT observations and five PO-EXT observations, derived from "generic" job titles. Yet, the Professional Team actually drew regression lines by hand based on this limited number of observations. [754] The second flaw was the exclusion by the Professional Team of one of the five observations in drawing its PO-EXT regression line which it considered to be anomalous because the job concerned was paid significantly more that the other jobs. Canada Post submitted that there may have been a more plausible reason for its exclusion. If it had been included, it might, in Canada Post's view, have demonstrated that there was no relationship between wages and job values. [755] The third flaw was the Professional Team's extrapolation of the PO-INT and PO-EXT pay lines which, Canada Post argued, demonstrated that the majority of the Hay point scores for the CR 2, 3, 4, and 5's fell outside the range of PO point scores. Only through extrapolation was it possible to make this comparison since there were no PO jobs that were equal in value to many of the lower value CR jobs. Accordingly, Canada Post was of the opinion that on the basis of the data collected by the Commission, it was simply not possible to make a wage adjustment for those lower value CR jobs. [756] The fourth flaw related to the Professional Team's selection of wage adjustment models which Canada Post considered to be unjustified. Having developed seven level-to-line pay lines and one position-matched option for only three of the years involved, Canada Post argued that with little explanation, Dr. Wolf and his two colleagues recommended the most expensive option for each of the three years. Both the Alliance and the Commission preferred the lower priced average composite PO-INT and PO-EXT option. [757] With respect to Mr. Ranger's analysis, Canada Post submitted that since it was based upon the Professional Team's work, the defects in the latter's reasoning and analysis were continued in Mr. Ranger's work. Further, Canada Post questioned Mr. Ranger's method of developing PO job pay lines for the years not addressed by the Professional Team, particularly where he based his pay lines on just two observation points. [758] Canada Post submitted that as a result of the fundamental flaws in the analysis of the Professional Team, compounded by the questionable approach of Mr. Ranger, Mr. Ranger's analysis and calculations must be rejected out of hand. [759] Canada Post argued that Dr. Kervin's wage adjustment methodology was also seriously defective and identified its four basic steps as follows: STEP A male pay line was determined using regression analysis of the male-dominated PO-INT and PO-EXT jobs. An average evaluation points score value was determined for the jobs in each of the four female-dominated CR levels. Steps 1 and 2 were used to obtain a "predicted male wage" for each CR level. The difference between the actual hourly wage for each CR level and its "predicted male wage" for that CR level was determined which represented the amount of wage adjustment to be made for that CR level. [760] Canada Post maintained that there were six flaws in Step 1, ranging from the fact that the male pay line included one of ten PO jobs that was not male-dominated but was between 33% and 53% female (the PO-4), to the fact that Dr. Kervin constructed his pay lines and computed pay adjustments for all years in 1995 dollars only. [761] In Step 2, Canada Post demonstrated that, by assuming that all jobs in the same CR level 2, 3, 4, or 5, had the same "job value" (the average job value within that level), some difficult and even absurd anomalies resulted because of the substantial overlap of job values between CR levels. Canada Post argued that a census rather than a sample might, indeed, be necessary at the adjustments stage to ensure a fair and equitable wage adjustment. [762] Canada Post faulted Step 3 of Dr. Kervin's methodology for treating all the employees in PO jobs as though they were men, and all PO jobs as though they were male-dominated, even though in Canada Post's submission, neither of these assumptions were true. [763] Finally, Canada Post argued that Step 4 would result in all jobs in a given CR level receiving the same wage adjustment regardless of their actual job value or their actual female percentage. For example, if one particular job at the CR-2 level was not female dominated, that job would obtain the same wage adjustment as a CR-2 job that was female dominated. Canada Post alleged that only 69.1% of the CR-2 incumbents were female, and were therefore, only "weakly" and not "predominantly", female (effective year not specified). Yet, Dr. Kervin's approach would provide CR-2 jobs with the largest wage adjustment of any CR level. [764] Canada Post also claimed that three of the four CR levels would, under Dr. Kervin's model, receive a wage adjustment substantially in excess of what Dr. Killingsworth derived in his "Model 1" as the maximum difference in pay that can be attributed to gender. This was unusual, argued Canada Post, as Dr. Kervin had, when presenting his evidence, fully endorsed and accepted Dr. Killingsworth's "Model 1". [765] In conclusion, Canada Post submitted that a wage gap award based on Dr. Kervin's methodology would be seriously flawed and should be rejected by the Tribunal. [766] Canada Post proposed an alternative wage adjustment methodology that would, in its opinion, avoid the flaws contained in the proposals of Mr. Ranger and Dr. Kervin while furthering the objective of section 11 of the Act. The basic principles of Canada Post's wage adjustment proposal were expressed along the following lines: PRINCIPLE Since the purpose of section 11 is to eliminate sex-based wage gaps, wages would only be increased for those jobs in a CR level that are strongly female. Since section 11 requires wage adjustments only to the extent that there is unequal pay for work of equal value, adjustments should be made at the level of the job, where job value is reasonably precise. Wage adjustments should correct only for wage differences attributable to the gender make-up of the job and should only close the gap between predominantly female jobs and jobs performed by men. Wage adjustments should be made only as "back-pay" to compensate for past discrimination. The Alliance and Canada Post have agreed in their current collective agreement that pay rates are compliant with section 11 of the Act. [767] To accomplish these principles, Canada Post outlined a detailed procedure which will not be described here. Suffice it to say that the procedure included use of Dr. Killingsworth's Models 1 and 7 for each year from 1981 to 2001, and of actual PO and CR wage rates including benefits and the 6.7% "paid lunch" allowance for the years in which it was in effect. It also provided for determining the percentage female in each predominantly female job.202 [768] Canada Post submitted that in the event the Tribunal ordered a wage adjustment in this case, it should direct the parties to use this approach in calculating the relevant amounts, while recognizing that the agreement of all parties would be required as how best to implement that approach. [769] Two other issues were addressed by Canada Post. The first related to what has been termed "paid lunch", which Canada Post argued was included or assumed in the calculations of Drs. Wolf and Kervin and Mr. Ranger. This gross-up of the PO wage rates by 6.7% should, in Canada Post's view, be removed. Canada Post argued that the evidence of Messrs Edward Fournier and Harold Dunstan, two of its witnesses, demonstrated that this benefit was achieved through collective bargaining and awarded on the basis of enhancing productivity. Known as "pay for performance", Canada Post submitted, it was clearly related to productivity and not to gender. Therefore, Canada Post argued that, because subsection 16(a) of the 1986 Guidelines indicates that a difference in wages between male and female employees performing work of equal value is justified by different performance ratings, this particular difference cannot be part of a wage gap. [770] The second issue was the impact on Canada Post of the collective bargaining and labour relations situation that prevailed for several years following the proclamation of the Canada Post Corporation Act in October 1981. Upon becoming a Crown Corporation, the then existing bargaining units and agents of the former Post Office Department remained in place until 1985 to assist in providing transitional stability. This, and the introduction of the federal "6 and 5" cost control legislation in 1982, pre-empted an early start by Canada Post on the expected reform of the collective bargaining process. [771] Consequently, Canada Post has now argued, in this case, that it "cannot be fairly said to have either established or maintained wage differences before at least 1985."203 [772] Canada Post took this argument one step further by referring to the fact that the Canada Labour Relations Board did not release its decision on the appropriate bargaining units structure for Canada Post until 1988 and its effect was not felt until the next round of bargaining in 1989-1992. Hence, Canada Post's following statement: Again, Canada Post cannot reasonably be said to have infringed section 11 because it had no real power to participate in establishing or maintaining wages until after that time.204 (iv) Reply Submissions of the Alliance [773] In addressing Canada Post's criticisms of the manual fitting of the male pay line, the Alliance countered that while "the results may be somewhat less accurate" than regression analysis, the technique used by the Professional Team had been successfully used by Mr. Willis in his Washington State Study. The Alliance also understood the Professional Team's results were extremely close to those of Dr. Kervin. [774] The Alliance argued that Canada Post's questioning of Mr. Ranger's work in generating PO pay lines for each year of the Complaint was "entirely without merit." Mr. Ranger's calculations were derived from basic mathematical principles and precisely replicated the Professional Team's methodology. [775] The Alliance reiterated that when the analyses of the Professional Team and Mr. Ranger were conducted, it was only possible to compare CR positions to PO jobs. The work of both Mr. Wilson and Dr. Killingsworth made it possible for Dr. Kervin to gross-up the CR positions into CR jobs enabling him to undertake his analysis on this basis. Despite this difference, the Alliance claimed that Dr. Kervin's end results were "strikingly similar" to those of the Professional Team and Mr. Ranger, and in the alternative, the Alliance adopted Dr. Kervin's methodology. [776] The Alliance made reference to the fact that a wage increase of nearly 20% had been granted by Canada Post to CR employees in 1995/1996 which would reduce the wage gap for the years subsequent to 1995. [777] With respect to Canada Post's proposed alternative wage adjustment methodology, the Alliance noted that this approach had never been advanced explicitly during the hearing and that it remained uncosted. The Alliance indicated that it adopted the submissions of the Commission regarding the inherent problems with such an approach. [778] The Alliance questioned Canada Post's use of subsection 16(a) of the 1986 Guidelines to justify excluding the value of the "paid lunch" in the calculation of PO wages on the basis of section 17 of the 1986 Guidelines. Section 17 requires that the reasonable factor invoked must be equally available to all male and female employees concerned. Canada Post failed, alleged the Alliance, to establish that performance pay was equally open to both the male comparator and the female complainant groups because the evidence before the Tribunal would indicate that CR performance pay does not exist. [779] The response of the Alliance to Canada Post's defences that it should not be responsible for wage discrimination under section 11 of the Act for a number of years during the 1980's was that "[t]hese defences are unmeritorious". While Canada Post has always maintained that there was no wage discrimination, the Alliance argued that Canada Post initially maintained and later independently established discriminatory wages between male and female employees performing work of equal value, an offence under section 11. The Alliance also argued that Canada Post could have rectified the situation by making voluntary equal pay adjustments, outside of collective agreements and without affecting base wage rates, as did the Government of Canada in the JUMI undertaking. Canada Post chose not to do so. [780] It was, therefore, the Alliance's submission that the specified time period during which Canada Post argued it lacked the power to establish or maintain wage differences should not be excluded from the ambit of this Complaint. (v) Reply Submissions of the Commission [781] The Commission acknowledged that it articulated its position on wage adjustment methodology after much of the evidence had been led. It was only after hearing the evidence of Mr. Wilson regarding the roll-up of CR positions to jobs, and having heard the expert evidence of Dr. Kervin, that the Commission felt comfortable taking a firm position on the choice of level-to-line methodology. [782] The Commission submitted that Canada Post had misinterpreted the wage adjustment methodology used by itself and the Alliance by claiming that both are treating the average of each CR level as a "job". The Commission responded by stating that its wage adjustment methodology does not treat each level as a job but averages the job values by CR level because all CR's in a given level are treated the same for pay purposes. [783] Canada Post's calculations of a possible total award based on Mr. Ranger's approach of approximately $2.4 billion, and of approximately $443 million based on Dr. Kervin's model, were questioned by the Commission. Neither supporting evidence indicating how the figures had been determined, nor evidence to enable one to replicate the calculations, were furnished, according to the Commission. [784] In response to what the Commission regarded as grossly inflated calculations by Canada Post, the Commission submitted that it had undertaken its own calculations based on Dr. Kervin's methodology. The Commission stressed that its calculations were but estimates, as the exact amounts would be dependent upon a number of factors about which information is not known at this time. Examples are: the exact number of employees at Canada Post over each of the many years of this case, their length of service, and the individual entitlements associated with "pay for all purposes". [785] Based on Mr. Wilson's reported CR population numbers and assuming a 1956.6 hour year, the Commission estimated the possible cost of correcting the CR wage gaps to be of the following order: (1) Using the Courts of Justice Act interest rate: compounded semi-annually approximately $527.5 million simple annually approximately $357.4 million (2) Using the Canada Savings Bonds interest rate: compounded semi-annually approximately $375.2 million simple annually approximately $301.1 million [786] The Commission cautioned that it had made what it considered to be certain reasonable assumptions and choices in arriving at these estimates, for the purpose of providing the Tribunal with a more realistic indication of potential cost implications than what had been provided to date. [787] The Commission submitted that Canada Post's attacks on Dr. Kervin's wage adjustment methodology can best be dismissed by addressing several key issues, as follows. [788] The first issue was Canada Post's flawed interpretation of section 11 of the Act and a misunderstanding or refusal to accept section 13 of the 1986 Guidelines. It would seem, argued the Commission, that Canada Post was simply opposed to the manner in which section 13 of the 1986 Guidelines determines gender predominance and preferred some other method or the use of an alternative percentage cut-off point. The Commission believed that the jurisprudence supports its approach in applying section 13 of the 1986 Guidelines. [789] The second issue was the use of the linear regression line. The Commission believed that Canada Post had repeatedly misunderstood the purpose of regression analysis in wage adjustment approaches. It is not, as Canada Post had argued, to "explain" pay, but rather to summarize the wages for the male and female groups, so that comparisons can be made "on average" in relation to a new measure of job value derived by means of a gender neutral job evaluation plan. [790] The third issue was the use of extrapolation. Contrary to Canada Post's assertion, the Commission submitted that Dr. Kervin did not question the use of extrapolation. Nor did he state that there were too few jobs to calculate a regression line for the male PO jobs. What Dr. Kervin did say was that it would be more difficult to extrapolate if the line were not linear. In this case, however, the PO pay line was linear. [791] The fourth issue was Canada Post's criticism of the level-to-line wage adjustment methodology which, in the Commission's opinion, provided "on-average fairness" within the existing CR classification structure. The Commission emphasized that one of the purposes of the level-to-line approach, as with any regression line model, is to allow wage adjustments where direct job-to-job comparisons are not feasible. [792] The fifth issue was a misinterpretation of the significance of Dr. Killingsworth's Model 1 as it related to the calculation of "pay equity" adjustments. In asserting that the level-to-line approach can produce "absurd" results when compared with Dr. Killingsworth's Model 1, the Commission argued that Canada Post had failed to realize that Model 1 was fundamentally different from a level-to-line model and measured a different variable. It was the Commission's position that, while Dr. Kervin acknowledged that Model 1 could show the existence of a "pay equity" problem, he did not accept it as suitable for determining exact wage gap adjustments. [793] With respect to Canada Post's own proposed alternative wage adjustment methodology, the Commission called it a "novel approach" but argued that, in formulating it, Canada Post had ignored or misinterpreted section 11 of the Act, the 1986 Guidelines and the case law. It appeared to the Commission to be an attempt to avoid the application of the Act and would lead to a result which would fail to advance the purpose of section 11 because it would not address systemic gender-based wage discrimination stemming from occupational segregation and the undervaluing of women's work. [794] The Commission questioned Canada Post's statement that its proposed methodology had been used in the past, and particularly that it had been "widely supported," and argued that the source cited by Canada Post failed to substantiate this proposition. In the Commission's view, Canada Post's proposal had been neither used nor supported under any federal equal pay for work of equal value policy, nor in any Canadian jurisdiction. [795] The Commission argued further that since Canada Post's proposal hinges upon the use of "percent female" instead of the concept of "gender predominance," it runs counter to what expert witnesses Drs. Armstrong and Kervin had advocated - addressing occupational segregation and the undervaluing of women's work as intended by section 11 of the Act. [796] Finally, the Commission remarked that it had had no opportunity to attempt to replicate Canada Post's proposed adjustment methodology, and no evidence, expert or otherwise, had been called to elaborate upon it. [797] In sum, the Commission submitted that the Tribunal should take an extremely cautious approach to Canada Post's wage adjustment methodological proposal and should reject it. C. Tribunal's Analysis (i) Preliminary [798] The Tribunal has already concluded that it is more likely than not that the reasonably reliable Hay Plan, process and job information, in the hands of the competent Professional Team, would result in reasonably reliable job evaluation values being attributed to the work performed by CR and PO employees (paragraph [703]). In determining the value of the work performed by those employees, the Professional Team applied the composite of the skill, effort and responsibility required in the performance of the work, and the conditions under which the work was performed, all in line with the requirements of subsection 11(2) of the Act. [799] Comparing the resulting CR and PO job evaluation values, the Professional Team found that a significant portion of the CR positions were of a value equal to or greater than that of the PO jobs. The next step was to identify whether or not there was a wage gap between the male-dominated PO jobs and the female-dominated CR positions after comparing the evaluation values and CR and PO hourly wage rates. The Professional Team concluded that there was a wage gap between CR's and PO's performing work of equal value. [800] Establishing a wage gap in this context is a most crucial step since it is the wage gap that evidences the discriminatory practice prohibited by section 11 of the Act. It has been said several times in this Decision that the essential purpose of section 11 is to eliminate systemic discrimination - to achieve "pay equity" between male and female employees employed in the same establishment who are performing work of equal value. It is therefore, by demonstrating a difference in wages between such male and female employees that systemic discrimination is proven under section 11, on a balance of probabilities, provided the employer has not demonstrated that the difference is attributed to one of the reasonable factors prescribed in section 16 of the 1986 Guidelines, and also provided that the methodology used in determining the wage gap meets the requirements of the Act. [801] The Tribunal accepts that the evidence of the Professional Team, both through the viva voce evidence of Dr. Wolf and also through the presentation of the Team's Reports to the Tribunal, is sufficient, on a balance of probabilities, to demonstrate a wage gap when the work of the predominantly female CR's was compared with the work of equal value being performed by the predominantly male PO's at Canada Post. As Mme Justice L'Heureux-Dube indicated, when she wrote of the difficulty of comparing work of equal value in the SEPQA decision: One element of difficulty is the concept of equality. The prohibition against wage discrimination is part of a broader legislative scheme designed to eradicate all discriminatory practices and to promote equality in employment. In this larger context section 11 addresses the problem of the undervaluing of work performed by women. As this objective transcends the obvious prohibition against paying lower wages for strictly identical work, the notion of equality in section 11 should not receive a technical or restrictive interpretation.205 [802] Further, the Tribunal accepts that Canada Post has not demonstrated that there was, in its personnel or wage policies, a reasonable factor prescribed in section 16 of the 1986 Guidelines which could explain this wage gap as caused by other than systemic sex discrimination. [803] Having accepted that there is a wage gap, and, consequently, there is proof, on a balance of probabilities, that there has been systemic discrimination in this "pay equity" complaint, the next step is to select the most appropriate wage adjustment methodology to use to calculate an award of lost wages and to eliminate the gap. Given the many circumstances of this case, how appropriate are the wage adjustment proposals presented herein, and is there one or more that the Tribunal finds acceptable? [804] To select the most appropriate wage adjustment methodology, it is helpful to be reminded of what Mr. Justice Evans said in the Treasury Board decision about the role of the Commission and the tribunal in such a choice: Section 11 provides only a broad legal framework within which problems of wage discrimination between men and women are to be tackled in light of the facts of the particular employment situation, the evidence of expert witnesses, and the underlying purposes of the statute. In my view it would be inconsistent with both the underlying purpose of section 11, and the legislative record, to interpret the section as impliedly prescribing with the particularity suggested by counsel for the Attorney General the characteristics of the permitted comparative methodologies. Much must inevitably be left to be decided by the Commission and the Tribunal case by case, with the assistance of experts. (emphasis added)206 [805] The Tribunal has concluded from the evidence before it, and influenced by Mr. Justice Evans' Treasury Board decision, that testing for the appropriateness of the proposed wage adjustment methodologies is best handled in the following manner: Are the methodologies compatible with the purpose of the Act, its Guidelines and its remedial provisions? What expert evidence was heard and what supportive case law was identified with respect to each wage adjustment methodology? What experience has the Commission had with such or similar methodologies? Are the methodologies sufficiently compatible with how work and wages are structured and organized by the employer, so that should a Remedy be recommended, it could be implemented without undue difficulty? [806] The Tribunal has identified three wage adjustment methodologies that it considers deserve assessment, as follows: The Professional Team/Ranger Proposal in the PO INT - PO EXT composite version, labelled Approach E: This version was based on the Professional Team's methodology subsequently replicated by Mr. Ranger who also undertook calculations on 12 month periods; supported by the Alliance, accepted by the Commission, and found to be unacceptable by Canada Post. The Kervin/Commission Proposal in a PO composite version: This version used the Professional Team's base material and Dr. Kervin's methodology in which he rolled up CR positions into CR jobs, courtesy of Mr. Wilson's and Dr. Killingsworth's workings; calculated by Dr. Kervin for 1995, all other years extrapolated by the Commission. Preferred option of the Commission, acceptable to the Alliance, unacceptable to Canada Post. The Canada Post Alternative Proposal. Proposed by Canada Post to avoid what it considered to be flaws in the other two proposals; presented in Canada Post's final submissions. Acceptable to Canada Post, unacceptable to the Alliance and the Commission. (ii) Review of the Wage Adjustment Methodology Proposals [807] Canada Post submitted that its Proposal would further the objective of section 11 of the Act by not awarding compensation where there was no demonstrated wage gap or where a wage gap was not based on sex. Wages would only be increased for those jobs in a CR level that were strongly female. Adjustments would have to be made at the level of the job where job value is reasonably precise. [808] However, the Commission argued that Canada Post, in developing its Proposal, had ignored or misinterpreted section 11 of the Act and the 1986 Guidelines, as well as case law, by failing to address systemic gender-based wage discrimination stemming from occupational segregation in the undervaluing of women's work. [809] Unfortunately, there was no expert or other evidence led by Canada Post in defence of its position. There was, however, evidence from the Alliance's expert witness, Dr. Kervin, who argued that Dr. Killingsworth's Model 1, which constituted an element of Canada Post's Proposal, was not suitable for determining exact wage gap adjustments. Indeed, because Dr. Killingsworth's methodology ignored the gender predominance requirements in the Act and the Guidelines, his Models would not, in Dr. Kervin's opinion, be appropriate for the "pay equity" Complaint before the Tribunal. [810] The Commission disputed Canada Post's statement that its proposed methodology had been used in the past and had been widely supported. It had, to the Commission's knowledge, never been used nor supported under the federal equal pay for work of equal value policy, nor in any Canadian jurisdiction. [811] The Tribunal notes that Canada Post's Proposal lacked any estimated costing of its possible impact as a wage adjustment approach. It was also noted that the Commission had not had an opportunity to replicate the methodology of this alternative option. [812] As a result, the Tribunal found it very difficult to assess this methodology vis-à-vis the other two Proposals, quite apart from attempting to put in context the many criticisms submitted by the Commission and endorsed by the Alliance. While one or two aspects of Canada Post's Proposal sparked the investigative interest of the Tribunal, it has concluded that it would be grossly unfair, not only to Canada Post, the initiator, but also to the other two parties, to attempt to make a decision about the appropriateness of a fairly complex matter, based on the very slim amount of factual evidence available and the complete absence of expert evidential input. [813] Under these circumstances, the Tribunal is compelled to excise the Canada Post Proposal from further consideration. [814] Both the Alliance and the Commission submitted that the two other Proposals, despite Canada Post's criticisms of them, were consistent with the purpose of the Act which, in line with Mr. Justice Laforest's 1987 decision in the Robichaud case, is remedial.207 [815] The Tribunal also recognizes the importance of addressing systemic remedies when one is dealing with systemic discrimination. Remedial measures should remedy the past, present and future effects of such discrimination. As Mr. Justice Dickson, then Chief Justice of the Supreme Court of Canada, pronounced in 1987 "statutes are deemed to be remedial and are thus to be given such fair, large and liberal interpretation as will best ensure that their objects are attained ... [and] the purpose of the [Canadian Human Rights] Act is ... to prevent discrimination".208 After a lengthy discussion of systemic discrimination and the methods necessary to combat it, the Chief Justice concluded that "it is essential to look to the past patterns of discrimination and to destroy those patterns in order to prevent the same type of discrimination in the future".209 [816] In 1996, Mr. Justice Hugessen noted that there was a "presumption that systemic discrimination will have produced the same effects in the past as it does in the present, although that presumption clearly becomes weaker the further it is extended into the past".210 [817] The Tribunal accepts the Commission's argument that while wage adjustment methodology can be a fairly technical matter, its real purpose is to operationalize equality under section 11 of the Act and it should, therefore, not receive a restrictive, overly technical interpretation. Complementing the goal of equality is the discretionary non-prescriptive remedial authority of the Tribunal under subsection 53(2) of the Act. The scope of the Tribunal's remedial jurisdiction is, therefore, not only discretionary but also broadly based in all of the circumstances concerned. [818] In this case, the Tribunal accepts the evidence of Mr. Durber, an early Commission expert witness, who dealt with the concept of "on-average fairness" as a determinative factor when dealing with the concept of "pay equity". He made the pertinent point that one is not dealing with one-to-one, job-to-job comparisons in seeking wage equality when large organizations and large numbers of employees are involved, but rather with employee group comparisons that provide "on-average fairness". [819] To put Mr. Durber's comments about "on-average fairness" in context, it is helpful to refer to his testimony in May 1993. During his direct evidence, while he was explaining why it was not feasible to do a job-to-job comparison, Mr. Durber pointed out that "averaging means that there are jobs whose values are higher than that mean and jobs whose values are lower".211 [820] Additionally, Mr. Durber concluded that there were reasons why individual job-to-job comparisons were neither practical nor even desirable, in this particular case: Fairness on average will end up with a system that is fair on average, that when one is designing a remedy, one probably cannot afford to design a remedy for all individuals because you are dealing with a systemic issue in which you are trying to see if whole structures ought to be adjusted on some reasonable basis. (emphasis added)212 [821] Indeed, the Commission's booklet "Implementing Pay Equity in the Federal Jurisdiction" referred to in earlier sections of this Decision (Exhibit HR-1), identified the "wage line approach" which presents job values and wages for employees in male-dominated jobs on an average wage line. The Tribunal accepts that the level-to-line approach is appropriate for a "pay equity" case such as this Complaint, and notes that both Proposals under review supported the composite PO level-to-line male wage line approach. [822] The Tribunal is cognizant that the Treasury Board case, in which the Commission was actively engaged, involved considerable evidence from expert witnesses called to give opinions concerning the selection of an acceptable wage adjustment methodology.213 The tribunal in that case favoured a level-to-segment methodology after hearing from at least four witnesses with significant expertise in the subject matter. [823] The Tribunal accepts that the two Proposals recognize that the wage adjustment device should be crafted in such a way that it can be implemented at the level in the organization at which the wage inequality manifests itself. In the current case, it is a question of adjusting the pay rates for the different CR classification levels because the goal of section 11 is to remedy discrimination within the existing job classification system of Canada Post. This will enable male predominant and female predominant employees, performing work of equal value in the same establishment, to receive equal pay. [824] Both Proposals have relied, understandably, on certain core evaluation material generated by the Professional Team, the job information for which was categorized by the Tribunal as being of "lower reasonable reliability". Additionally, there has continued to be a question of how representative the CR sample was, in fact, given the different opinions of Drs. Kervin and Bellhouse. Dr. Kervin considered the sample to be sufficiently representative to provide adequate representation at each CR level for use in his methodology. [825] With regard to the "paid lunch" issue, the evidence before the Tribunal was that the PO wage rates used in the calculations of the Professional Team, and of Dr. Kervin and Mr. Ranger, reflected the 6.7% additional value.214 A similar addition to the CR wage rates was not applied, as "paid lunch" is not applicable to the CR employees. Furthermore, the Tribunal finds that no evidence was presented to support Canada Post's argument that the value of "paid lunch" should be excluded under subsection 16(a) of the 1986 Guidelines as a "pay for performance" provision, which would require equal applicability to both the PO and CR employees under section 17 of the 1986 Guidelines. [826] There does, however, appear to be some disparity between what Canada Post called for in its own Alternative Proposal and what it submitted about the Professional Team/Ranger and Kervin/Commission Proposals, insofar as the "paid lunch" issue is concerned. The evidence indicated that a "paid lunch" allowance was included for PO employees for the years it was in effect in Canada Post's Proposal, but was questioned by Canada Post when included in the other two Proposals.215 [827] Mr. Ranger and Dr. Kervin, and the Commission, all cautioned that their respective calculations have resulted in estimates only. Additional work will be required to achieve final costing of individual adjustments per CR employee after having access to employee records in consultation with Canada Post. [828] Mr. Ranger made particular reference to his best estimates of employee population data which were taken at one point in time and were assumed to be all full-time employees. He also indicated he had used maximum wage rates throughout his calculations. (iii) Sum-up [829] Determining the most appropriate wage adjustment methodology upon which to apply the principle of equal pay for work of equal value enacted by Parliament in section 11 of the Act and sections 13 and 14 of the 1986 Guidelines, has not been an easy task. In the foregoing analysis, the Tribunal has examined the available methodology options presented by the Parties by means of the four eligibility criteria identified in paragraph [805] - that is, consistency with the purpose and remedial provisions of the Act and with its Guidelines; reference to expert opinions and case law; reference to Commission experience; and compatibility with the employer's work and wage structures. [830] The Tribunal has identified three alternative wage adjustment methodology options that it has accepted for consideration. It has examined all three against the four eligibility criteria. [831] Given the complexity of the subject matter, the Tribunal concluded that the assistance of experts familiar with "pay equity" and wage adjustment methodology was of particular importance in its consideration of each option, not only in terms of helping the Tribunal to understand the nature of each wage adjustment methodology, but also in terms of contextualizing each methodology while interpreting the purpose and principles of the Act and its Guidelines. [832] Despite the Tribunal's interest in studying, further, Canada Post's Alternative Proposal, it was found to be based on very little factual evidence and the complete absence of expert evidential input. Under these circumstances, the Tribunal concluded that it was not a viable option for this case. [833] The Tribunal found that each of the two remaining options - the Professional Team/Ranger Proposal and the Kervin/Commission Proposal meet, on a balance of probabilities, the four eligibility criteria and can, therefore, be considered appropriate wage adjustment methodologies for this case. [834] The Tribunal, however, does not accept as conclusive the monetary values provided by the parties and witnesses for each of the two Proposals. The Commission and the Alliance, as well as the expert and other witnesses canvassed, have cautioned that their respective calculations are only estimates requiring additional work to achieve final costing of individual CR employee adjustments. [835] Access to individual employee records in consultation with Canada Post will be necessary. Additionally, a number of variables may require detailed review. These may include the actual employee populations and their full time or part time status, the various wage rates used and their sources, and the individual employee entitlements for "pay for all purposes". [836] Since the two Proposals meet the four eligibility criteria, and ignoring the cost implications of each, either of the two could be considered as appropriate wage adjustment methodologies for this case, subject to the additional work mentioned in the preceding paragraph. [837] Which of the two is preferable? The Commission urged that the Tribunal accept the Kervin/Commission Proposal as "jobs" were used as the basis for its conclusions. More up-to-date information was also included in that Proposal. [838] Dr. Kervin commented extensively on the necessity, in "pay equity" cases, that the notion of systemic discrimination be a foundation for decisions made. He indicated that an allegation of systemic discrimination, in the "pay equity" context, demanded a close scrutiny of "jobs" in the organization involved. [839] This commentary reflects very much that of Dr. Pat Armstrong, who had introduced the Tribunal to the concept of "pay equity". She, too, had underlined the necessity to concentrate on "jobs" rather than on individuals, to see the concept of "pay equity" as a natural evolution of the history of business philosophy. [840] As Dr. Kervin observed: Pay equity is about systemic discrimination. It is about discrimination decisions that are not made on a one-to-one basis, but rather are inherent as part of the view of how an organization approaches jobs and their compensation. That is part of the reason it moves beyond equal pay for the same work, which would deal with non-systemic discrimination; in other words, discrimination targeted to some specific individual: "I don't like your mouth, so I am going to make sure you don't get paid as much". In this case, we are talking about decisions that are made about jobs and the content of jobs and the important thing - and one of the reasons I believe the focus is on jobs rather than positions is that you want those decisions to be about work content. If pay equity deals with decisions about work content and the value of that work content to organizations, then you can see that the decision takes place when you think about the job. If there are no jobs, then it will take place at the level of the position. But there one has to be careful to make sure that the characteristics of the incumbent - height, eye colour, race, whether or not he or she is bald, those kinds of things - don't enter into the decision-making. Those are discriminatory behaviours of a different sort. With pay equity, it's jobs of equal work. The job itself in terms of how much it's worth to the organization ought to be paid fairly based on that worth to the organization.216 [841] Therefore, Dr. Kervin took from both Mr. Wilson's and Dr. Killingsworth's work their aggregation of the CR positions to create "jobs" with the characteristics of those positions rated by the Professional Team. Their work converted the 194 CR positions into a number of jobs by combining the information on all the positions into "some jobs". Dr. Kervin described this work as "aggregat[ing] the ratings of the positions into ratings of jobs" (Exhibit HR-93A). [842] Using these jobs, according to Dr. Kervin, one can create a comparison of the PO jobs and the CR jobs, using a level-to-line technique, and from that comparison, determine how to close the wage gap. [843] The male wage line is created, according to Dr. Kervin, by observing the wage data and the Hay points for the male-dominated PO jobs. Then, the "mean" or "average" value for each CR level can be calculated by using the information for the CR "jobs". The question then becomes, "what would the wage at the CR level be if the jobs in that category were paid according to the male wage line?" This new "female" wage is the wage necessary to close the gap. [844] This emphasis on "jobs" is important to the concept of "pay equity". Based upon this ability to deal positively with the concept of closing the wage gap, while using information about the respective "jobs" involved, the Tribunal prefers the Kervin/Commission Proposal. [845] The exclusion of statutory payments ("pay for all purposes") from the calculations in both Proposals is the subject of the next Section of this Decision entitled Non-Wage Forms of Compensation. VIII. Non-Wage Forms of Compensation A. Background [846] The provisions of the Act pertinent to this Section of the Decision are found in subsections 11(1) and 11(7) of the Act, which have already been identified in the Decision but are restated, below, for ease of reference: Equal wages 11(1) It is a discriminatory practice for an employer to establish or maintain differences in wages between male and female employees employed in the same establishment who are performing work of equal value. (emphasis added) Definition of "wages" 11(7) For the purposes of this section, "wages" means any form of remuneration payable for work performed by an individual and includes (a) salaries, commissions, vacation pay, dismissal wages and bonuses; (b) reasonable value of board, rent, housing and lodging; (c) payments in kind; (d) employer contributions to pension funds or plans, long-term disability plans and all forms of health insurance plans; and (e) any other advantage received directly or indirectly from the individual's employer. (emphasis added) [847] For the sake of clarity, the Tribunal notes that two terms have been used, somewhat interchangeably, in the evidence and the testimony to address the subject at hand. One is the term non-wage forms of compensation, the title of this Section of the Decision. The other is pay for all purposes. [848] Non-wage forms of compensation, sometimes also called in the evidence "non-wage benefits", "indirect compensation", "indirect wages", "indirect remuneration", or even "non-cash wages" or "non-cash remuneration", is the term that has arisen most frequently to include all forms of compensation itemized in subsection 11(7) of the Act, other than base wage or salary. [849] Pay for all purposes seems to have been used primarily in the context of Remedy. For example, in being questioned by Canada Post counsel whether or not Canada Post would have to make statutory remittances on any wage adjustments from a wage gap on items such as employment insurance, health tax, or pensions, Mr. Ranger responded, as follows: A. It is certainly my view that the equal pay adjustments on the new rates are pay for all purposes. Q. So that would include, in your view, making statutory remittances to any pertinent statute? A. Yes.217 [850] Another example is the Commission's use of the term on page 187 (Chapter 13) of its Submissions, as follows: Thus, a pay for all purposes remedy will account for the reality that any benefit which is linked to the base salary will be likewise affected by any wage rate adjustments. [851] In effect, the Tribunal is examining the question of "indirect compensation" at two levels. The first level is the impact of the non-base salary elements specified in subsection 11(7) on the definition of "wages". The second level is the inclusion in any wage gap adjustments, not only adjustments to the base salary or direct wage, but also to the non-salary elements, as may be appropriate. [852] Presumably, this becomes an issue only if the non-salary elements have not been costed, and therefore, not included in the employer's definition of "wages". If they have been costed and included in "wages", their value will be reflected in any resulting wage adjustments. The employer will, understandably, have to deduct from an individual employee's gross wage adjustment such items as relevant income tax and incremental pension plan contributions. The employer will have, however, an additional liability in terms of making remittances against any wage adjustments that may be required under statutory-based non-salary obligations which are jointly supported by employee and employer, such as pension plan contributions. [853] It is important to note that in determining that there was a `wage gap' as described in the preceding Section of this Decision, the Professional Team's analysis relied on the base "direct wages" of the CR positions and PO jobs which did not include the non-wage benefits. The Commission, in undertaking its job evaluations during the Investigation Stage of the Complaint, had not specifically costed the non-wage benefits. [854] All parties did acknowledge, however, that non-wage compensation, within the meaning of subsection 11(7) of the Act, must be considered in an equal pay complaint. Indeed, the Alliance engaged, in 1995, an expert resource in the person of Dr. Don Lee, to address the costing of these components for the 12-year period of 1983 to 1995. His Report is the subject of review later in this Section of the Decision. B. Submissions of the Parties (i) The Commission's Position [855] The Commission's Final Investigation Report, dated January 24, 1992, included the following sentence in paragraph 58: There appears on balance to be a wage gap in non-cash remuneration insofar as the available evidence indicates. [856] Mr. Paul Durber, giving his evidence-in-chief in June 1993, was asked by Commission counsel to elaborate on that statement in the Final Investigation Report. The following comments were included in his response: We will recall from some of the earlier evidence that section 11, of course, requires that we look not only at salaries but all forms of remuneration. That is, what is referred to here as non-cash wages, indirect remuneration.218 [857] When asked by Commission counsel what effect such non-cash remuneration would have on the alleged wage gap, Mr. Durber responded as follows: It would appear on balance to enlarge the gap somewhat. It is difficult to say by how much. We know that non-cash remuneration accounts for the smaller portion of total remuneration - that is, perhaps 30 per cent - and we know that much of that 30 per cent in turn is driven by direct wages... (...) So we don't have all the evidence. We know this investigation is incomplete on that score. We have not been able to get the information and we draw a very general conclusion that there may be an additional wage gap. We don't think that indirect or non-cash remuneration will reduce the gap...219 [858] In its final written submission, the only reference the Commission appears to have made to non-wage compensation is an indirect one, in the context of wage adjustment methodology, when it stated as follows: ...it is essential that the pay equity adjustments include not only adjustments to base salary, but also for all purposes, i.e. pensions, overtime, sick leave, acting pay, and long term disability payments. (...) Pay for all purposes will ensure that all necessary adjustments are made in respect of all pay-related benefits and premiums. As a result, entitled employees should be compensated in respect of any monetary benefit which has a nexus to the base wage rate.220 (ii) The Alliance's Position [859] The Alliance called Dr. Don Lee as a witness before the Tribunal in October 1995. He was qualified by the Tribunal as an expert in contract analysis and non-wage compensation valuation. [860] Dr. Lee obtained his Bachelor of Arts degree in 1968 from the University of Waterloo and his Master of Arts in political science from Queen's University. He later studied under a Canada Council Fellowship at the London School of Economics from which he was awarded a Ph.D. in political studies in 1980. He began his career as an Actuarial Assistant with a competitor of the Hay organization, handling the calculations associated with pension plan valuations, work which was compatible with his earlier mathematical studies at the undergraduate level. Subsequently, he served as Assistant Director of Research and Legislation with the Canadian Labour Congress and was engaged in the development of pension plan benefits policy and the provision of technical advice to unions in bargaining with respect to pension plans and other benefits such as retirement health insurance coverage. In the period of 1977-1978, he was contracted by the Ontario Federation of Labour to coordinate its participation in the Ontario Royal Commission on Pensions. Dr. Lee has been operating as an independent consultant since 1979. His firm, Union Pension Services Ltd., focuses on two principal aspects of retirement pensions and related benefits: firstly, providing technical support to unions at the bargaining table and secondly, offering education and training to union members. Dr. Lee's clients have included unions in many prominent Canadian industries and several Ontario public sector unions. [861] Dr. Lee stated that he had been contracted by the Alliance in June 1995 to compare the non-wage forms of compensation of the CR group and the PO EXT and PO INT sub-groups, for the lifetime of the Complaint from August 1983 to the summer of 1995. He indicated that he had examined a variety of federal government benefit plans and certain consultants' reports on non-wage compensation. He also reviewed 14 collective agreements covering this period of time for the CR and PO employees concerned. Dr. Lee's Report has been designated as Exhibit PSAC-55. [862] Dr. Lee reported that he had been instructed by the Alliance to exclude from his study those benefits provided for in paragraph 15(1)(f) of the Act. These are benefits which are provided but that provision is not deemed to be a discriminatory practice. Paragraph 15(1)(f) reads, as follows: 15 (1) It is not a discriminatory practice if.... (f) an employer, employee organization or employer organization grants a female employee special leave or benefits in connection with pregnancy or child-birth or grants employees special leave or benefits to assist them in the care of their children. [863] In comparing the individual non-wage compensation provisions of the CR and PO groups, Dr. Lee determined where differences existed between the two groups and then calculated the value of those differences in wage-equivalent terms. To maintain a consistent framework, he classified some 51 non-wage provisions into 9 general categories of compensation. [864] Dr. Lee stated that, in undertaking his study for the Alliance, he accepted the principle (which he understood the Commission also endorsed) that a determination of equality of non-wage compensation should be simple and workable for employers and comprehensible for employees. Therefore, recognizing the difficulty of being precise about valuating certain non-wage compensatory components, he considered differences representing less than 1/10th of 1 % of wages not to be significant. Individual differences of this order were, therefore, not reflected in Dr. Lee's comparison calculations. [865] Dr. Lee indicated that his detailed valuation analysis was confined to the non-wage compensation provisions included in the then-current collective bargaining agreements. He was, therefore, dealing with those agreements in effect in the summer of 1995, which concerned the full-time CR and PO employees. [866] Dr. Lee confirmed, when giving his evidence, that his Report did not include, in his list of non-wage compensation items, the provision of uniforms and protective clothing for the PO employees which clearly favoured that group. He also did not include a provision for job security/technological change. [867] Dr. Lee did, however, undertake a general review of what he called "historical differences" arising from collective agreements that were in effect from 1983 to 1994. His general review revealed that many of the "historical differences" were minor. Many more were temporary and were subsequently eliminated through the normal process of collective bargaining. He decided, therefore, that it was not feasible to calculate wage-equivalent values for such differences without a complete file of employee experience with each of the compensating provisions over the twelve-year period. [868] The last paragraph of page 21 of Dr. Lee's Report reads as follows: And finally, wherever any judgment enters directly into a calculation, I have attempted to overstate the value of the differences favouring the CR group and to understate the value of differences favouring the PO group. [869] Dr. Lee illustrated the meaning of this point by citing an example where he was in doubt whether or not to classify a particular CR non-wage benefit provision as being equivalent to or better than the companion PO provision. Where he had to make a judgement call, he sought to classify the current CR provision as being better for the complainant group than the current PO provision was for the comparator group. [870] Should his judgement call be questioned, he said he would be able to claim that he had erred on the side of underestimating the value of the specific benefit that favoured the CR group. He went on to say that "this is a sort of general principle of actuarial practice: when in doubt, make an assumption which tends to favour the opposite of your conclusion".221 [871] Dr. Lee concluded from his study that, based on the then-current 1995 collective bargaining agreements in effect with full-time CR and PO employees concerned, there were essentially no differences in non-wage compensation between the two groups of employees. [872] Specifically, he indicated as follows: The essential point, I think, is that the overwhelming body of non-wage compensation provisions are currently the same or equivalent, and the extent to which they are the same or equivalent represents something like 34 per cent of wages.222 [873] He further concluded that there were no reasonable grounds for calculating differences in non-wage compensation for the two employee groups for the period 1983 to 1994 since any differences that were identified were relatively minor and often temporary. Moreover, a reliable calculation of the value of differences would require intensive study of employee experience for each of the compensatory provisions, over the twelve-year period. [874] Accordingly, Dr. Lee concluded that there were no differences in non-wage compensation between full-time CR and PO employees that should be considered in determining if there were any "differences in wages" under subsection 11(1) of the Act. (iii) Canada Post's Position [875] Canada Post called Mr. Robert Bass as a witness in April 2000, and he was qualified by the Tribunal as an expert in costing compensation. [876] Mr. Bass obtained his extended honours Bachelor of Science degree in mathematics and computers in 1974 from the University of Waterloo, under its co-op alternating classroom/workplace program. He began his career with the Toronto Board of Education where his primary responsibility was to support the Board's teachers' collective bargaining team, particularly with respect to complex costing issues. He became Director - Research and Information for the Ontario Hospital Association in 1977 where he developed a fully functioning research department whose role was to provide research and data support to the bargaining teams of member hospitals. Mr. Bass developed a computer-based total compensation-costing model for the Association, tracking wages and other compensatory clauses in hospital collective agreements. In the early 1980's, Mr. Bass set up his own consulting firm, known more currently as Bass Associates Ltd., providing a full range of labour relations support to management clients in the public sectors in Ontario, Alberta and B.C. Clients have included a broad range of providers in fields of service such as education, health, policing, and retirement homes. Mr. Bass specializes in providing employers with the costing and database analysis that is particularly crucial to management in the collective bargaining process. Since the passing of Ontario's Pay Equity Act in 1987, Mr. Bass and his associates have become increasingly engaged in developing with clients, gender neutral pay equity plans, often province-wide, requiring the involvement of both employers and unions. Inevitably, such plans demand an accurate assessment of the total value of compensation packages (wages and non-wage benefits) for comparison purposes in the context of the collective bargaining process. [877] Mr. Bass indicated in his evidence that it is not unusual for "costing" to be a major issue in addressing wage and non-wage benefits in collective bargaining negotiations. He testified that it is important for both the employer and the union/employees concerned to know the cost of particular demands that arise in negotiations. It is acutely important for the employer to have this information, as it is the employer who must ensure that the business has the ability to carry all costs negotiated. [878] When one is dealing with collective bargaining situations, according to Mr. Bass, there is often a requirement that the parties to negotiations develop a total compensation-costing model for both wages and non-wage benefits. This model must address the cost of existing wage and non-wage benefits for a base year, and then cost precisely the improved or diminished benefits for the years being negotiated. [879] This requirement for precision, according to Mr. Bass's evidence, may entail the use of data retrieval techniques, identification of assumptions, and computer simulation modelling to gather and analyse pertinent employee usage and other information for each benefit. Of critical importance in such valuations is the modelling of the rate of expected change and the cost of such change to the employer. [880] Mr. Bass confirmed that his mandate from Canada Post was to review and critique Dr. Lee's Report and "...to look at its methods, assumptions and methodology and give my comments".223 Mr. Bass's Report has been identified as Exhibit R-547. [881] Mr. Bass's critique of Dr. Lee's Report faulted it on several grounds. [882] First, Mr. Bass indicated that Dr. Lee made a methodological error by basing his analysis on the then-current 1995 non-wage compensation provisions. Mr. Bass stated that he would have used 1983 as his base year because he would have been looking for the differences in non-wage benefits from the time the Complaint was filed. [883] Second, Mr. Bass disagreed with Dr. Lee's decision to dismiss individual differences in non-wage benefits of less than 1/10th of 1% on the grounds that the sum of a large number of small numbers can equal a large number. Mr. Bass would have included such differences in his analysis. [884] Third, Mr. Bass was not in agreement with Dr. Lee's exclusion of job security from his analysis and referred to Dr. Lee's response to the question of job security as a benefit which he "...[had] not been able to attach any wage equivalent value to...".224 Mr. Bass said that, in his experience, job security was one of the principal issues in collective bargaining. He added that it had such import in collective bargaining that it often became the basis for trade-offs in the negotiating process. In this case, Mr. Bass indicated that the generous job security provisions in Canada Post's union agreements meant that it was important to cost job security. He believed that it could be costed and identified several basic steps for doing so. [885] Fourth, Mr. Bass challenged the exclusion of non-wage benefits arising from paragraph 15(1)(f) of the Act. Although Mr. Bass acknowledged that Dr. Lee was following the direction given to him by the Alliance when he did not address these non-wage benefits, he indicated that the items excluded should have been costed. He based this opinion, again, on the fact that these items are often major issues in collective bargaining and, as such, should be deserving of valuation. This opinion was refined somewhat when Mr. Bass indicated that he would, at least, cost those benefits which go beyond minimum employment standards. He indicated that such benefits as paternity leave and leave for family responsibilities might be examples of non-wage benefits which are not sufficiently widespread to be considered to fall within the realm of minimum employment standards. [886] Mr. Bass concluded that each of the four faults described above could, individually, distort the valuation of the non-wage forms of compensation applicable to the employee groups involved in this case. He considered all four faults to be "fatal flaws" in Dr. Lee's analysis, thereby rendering the results of his work as unreliable. (iv) Tribunal's Analysis [887] There is no dispute among the parties about the intent of subsection 11(7) of the Act. It defines what is meant by "wages", and includes therein those forms of non-wage compensation specifically identified in addition to the remuneration paid for work performed by individual employees. All parties also recognize that paragraph 11(7)(e) calls for "any other advantage received directly or indirectly from the individual's employer" to be included in the definition of "wages". [888] As well, there is probably no dispute among the parties about applying a "pay for all purposes" Remedy, should one be called for. While Canada Post does not appear to have used the expression "pay for all purposes" in its submissions, it was, as noted earlier, used by the Alliance's witness, Mr. Ranger, in response to a question from Canada Post counsel. [889] The Federal Court of Appeal, in its decision of March 18, 2004 in the `Airlines Case', reinforced what it called this "very broadly" defined term of "wages".225 [890] The Commission's investigation reached the very general conclusion that there was likely an addition to the wage gap between the CR complainant and the PO comparator groups when one took into consideration the non-wage benefits, or indirect remuneration. Although it offered no direct evidence of such, it did not think that the non-wage remuneration would reduce the wage gap in direct remuneration between the comparator and the complainant groups. [891] The Alliance's position was that there was no difference in value in non-wage compensation between the CR and the PO employee groups. This position was underlined by the Report of Dr. Lee which was based upon the collective bargaining agreements in effect in 1995 with full-time CR and PO employees. A review of the "historical differences" between 1983 and 1994 led to Dr. Lee's conclusion that there were relatively minor and often temporary differences in value of non-wage compensation between the two groups for that period. [892] Canada Post presented its position that Dr. Lee's Report was flawed and, therefore unreliable through the evidence of its witness, Mr. Bass. His evidence was a critique of the Lee Report, and offered no determination of valuations or comparisons of values of the non-wage compensation components of the employee groups. Rather, he indicated to the Tribunal that the flaws identified could have led to a deviation or a distortion in the results of Dr. Lee's work. [893] As always, the Tribunal must consider reliability in the context of the circumstances involved in the Complaint and will use the standard of reasonableness, based on the civil standard of the balance of probabilities. [894] As already noted, having been accepted as an expert in contract analysis and non-wage compensation valuation, Dr. Lee's mandate was to determine and compare the value of the non-wage elements of compensation for the CR and PO employee groups. [895] Dr. Lee noted that, from the inception of the Complaint to 1995, when he delivered his Report, there had been 13 collective agreements involving Canada Post and the Alliance and the unions representing the PO's. The PO group was first represented by LCUC which later merged with CUPW. Four agreements of the 13 involved Canada Post and LCUC. [896] Dr. Lee's main area of scrutiny was the current (1995) collective bargaining agreement for each of the complainant and the comparator groups. Although he was aware of the prior agreements, information was not available for certain non-wage benefits for some years, and sometimes it was simply not existent at all. For those benefits he could compare in prior years, he noted that the differences were minor over the years, and often were temporary. [897] For the current (1995) period, Dr. Lee examined 51 provisions of the collective agreements involving the CR's and the PO's. He excluded eight provisions entirely and two partially pursuant to paragraph 15(1)(f) of the Act, as requested by the Alliance. Of the 41 remaining provisions, he classified 24 as giving the same or an equivalent non-wage benefit to each group. An additional eight provisions had had differences in past agreements but were currently the same or equivalent. [898] Eight provisions favoured one or other of the CR's or PO's. Six favoured the PO group and two, the CR group. Dr. Lee had been instructed by the Alliance that, when in doubt, he should choose the option that would reduce any wage gap. He had tried to do this, as he noted, (paragraphs [868]-[870]) using his principle of actuarial practice "to favour the opposite of your conclusion". [899] Based upon his comparison of the collective bargaining agreements and his calculations of the values of the individual benefits, Dr. Lee concluded that there was no substantial difference between non-wage compensation for the two groups with the exception of the uniforms and protective clothing allowance for the PO group, which he estimated "may amount to as much as 2.08% of wages". [900] As noted earlier, Canada Post's expert in the costing of compensation, Mr. Bass, was mandated to critique the work of Dr. Lee. He was not asked to determine and compare the value of the non-wage compensation components of both employee groups. [901] Mr. Bass faulted Dr. Lee's Report on several grounds and concluded that each fault identified could have changed Dr. Lee's conclusion by distorting the valuation of the non-wage forms of compensation. [902] Mr. Bass indicated that the choice of year is critical when doing a comparative analysis of non-wage compensation, as the year chosen will be the basis for future collective bargaining and eventual agreement. In this case, he noted that the year the complaint was brought would have been a better choice. Mr. Bass would have liked to have been able to see clearly the changes in cost of the non-wage compensation as the years unfolded from 1983 to 1995, and, thereby, make note of what Dr. Lee called minor or transitory differences in order to come to a definitive conclusion. [903] Mr. Bass did admit that he understood that information for certain non-wage benefits was either not readily available or not available at all for all the years concerned. In other cases, an automated capacity was not available, necessitating a manual and more expensive means of data retrieval. He stated that, while his methodology depended upon obtaining accurate data, it was not uncommon to encounter situations where employers felt they could not provide suitable data. In such circumstances, he believed that one had to probe deeper, and perhaps deal with employer representatives who are close to the working operation. In terms of voluminous manual records, Mr. Bass stated that he might be prepared to work with a reasonable sample size, provided he could be assured that he would get representative data. [904] The Tribunal finds that Mr. Bass's first criticism of Dr. Lee's work relating to his selection of the base year of 1995 rather than 1983 has merit as a theoretical statement of the most suitable year to begin the analysis of non-wage compensation differences between groups. In the circumstances, however, this cannot be given such weight as to overcome the work on the available 1995 data. There was a lack of certain information. Other information was not readily available. Dr. Lee, a witness being called by the Alliance to give evidence at the Tribunal hearing, could not simply ask a representative of the Respondent, Canada Post, to supply information to him. Even if he had been able to do so, subsequent evidence demonstrated that some of that information was not available. [905] Mr. Bass's second criticism related to Dr. Lee's decision to dismiss differences in value of non-wage compensation benefits of less than 1/10th of 1%. Although the Tribunal understands Mr. Bass's point about the possible total cost of a series of individual benefits with less than 1/10th of 1% difference, he gave no concrete evidence to illustrate what impact this might have on the definition of wages. [906] Therefore, the Tribunal does not give significant weight to this second alleged fault in Dr. Lee's Report. [907] Dr. Lee and Mr. Bass disagreed about the ability to evaluate a benefit such as "job security", Mr. Bass's third area of concern. While Dr. Lee identified job security as an employee-benefitting category of non-wage compensation, he concluded that there were not reasonable means of attaching a wage-equivalent value to such a benefit, as it depends on future usage which cannot be reliably predicted. [908] Mr. Bass disagreed. He felt that the costing of job security was particularly important in industries where technological change is prevalent, such as in postal operations. He did, however, note that to cost such a benefit would require access to appropriate employee data such as the number of employees actually or potentially at risk of being declared surplus, the time elements involved, and other related factors. [909] While both expert witnesses acknowledged that job security is a non-wage benefit, it is evident, under the circumstances of this case, that Dr. Lee did not have access to the necessary information to undertake a costing, however approximate, of its value. Nor was the timing of his study propitious in the midst of the current hearing. [910] Given the nebulous nature of costing job security and the credibility of both witnesses in their respective fields of expertise, the Tribunal accepts that job security is probably one of those non-wage benefits that is likely to be of equivalent value to virtually all of the CR and PO employees. Furthermore, the evidence suggests that this could be particularly so in an industry where technological change is prevalent, such as a modern postal collection, processing and delivery organization. [911] Finally, Mr. Bass indicated that a thorough comparison of value of non-wage compensation for the CR's and the PO's would necessitate the valuation of the various provisions excluded by Dr. Lee. They concern primarily leave, with or without pay, for maternity, paternity and adoption, as well as leave for family responsibilities or for parental needs. [912] These provisions arise under paragraph 15(1)(f) of the Act and represent benefits which are deemed by the Act not to be discriminatory. For this reason, Dr. Lee testified that he had been instructed by the Alliance to exclude them from his analysis. [913] Mr. Bass stated that he would have costed the paragraph 15(1)(f) benefits - or at least, those that were above the minimum employment standards. He said that it was not usually regarded as an achievement in collective bargaining circles to negotiate only up to employment standards. It would, however, be an achievement to negotiate and succeed with benefits that go beyond those standards and, therefore, vital to know the costed value of the benefits. [914] In the circumstances of Dr. Lee's Report, Mr. Bass admitted that such a costed valuation would be impossible without the availability of the usage data for each of the benefits which he did not have. Therefore, Dr. Lee's acceptance of his instruction to exclude the provisions which fell under paragraph 15(1)(f) of the Act was understandable given the nature of the Complaint, the clear wording of the paragraph, and the unavailability of the necessary data. [915] Similarly, without an ability to make a costed valuation, Mr. Bass's comment that a majority of the paragraph 15(1)(f) provisions appeared to favour the CR group was sheer supposition.226 [916] Nor was Dr. Lee above making a supposition concerning provisions which he was unable to value or which he believed were part of Canada Post's administrative practice. He commented, as follows, on benefits such as Career Development Leave with Pay, and Examination Leave with Pay, both of which were available to CR employees for many years prior to 1995 when the PO group negotiated their availability for its group: ...I find it difficult to imagine that Canada Post would not have allowed POs time off for important examinations up until their most recent contract. I suspect that in the case of some of these differences, that there have been administrative management practices ... which have been in place, perhaps, for years but were never written into the contract...227 [917] Neither expert's supposition had a basis in the evidence heard by the Tribunal. [918] The Report of Dr. Lee, however, does present the picture of the value of the non-wage compensation available to the complainant and comparator groups as being, more likely than not, of equivalent value and tied, in a negotiated pattern, to the value of the wages paid to the two groups. [919] The critique of Mr. Bass has not persuaded the Tribunal that Dr. Lee's Report should be rejected. Indeed, it has underlined the need for availability of data and materials in order to do more precise work. In the circumstances of this Complaint, the ability to be more precise was substantially reduced because of a lack of suitable data necessary to that precision. This lack of precision is a long way, however, from stating that the evidence presented by Dr. Lee's Report cannot be accepted as proving, on a balance of probabilities, that it is more likely than not that the non-wage compensation of both the complainant and the comparator groups was generally equivalent. [920] There remains one other issue to consider which relates to Canada Post's statement, on page 264 of Chapter 11 of its written submissions, viz: Any wage-gap analysis under section 11 is incomplete and inaccurate without an analysis of all forms of non-wage compensation. A full analysis is not only necessary; it is a required element of Section 11, and therefore a required element of a prima facie case. [921] The resulting question that the Tribunal must address is: Has a reasonably reliable analysis been undertaken by the Complainant with respect to the non-wage components of compensation to meet the requirements of section 11 of the Act? [922] First, the Tribunal accepts, from the evidence, that the manner in which the examination of the non-wage components was handled in this case was far from what one would expect from a joint employer-employee "pay equity" study. It was even removed from what one might consider as normal, accepted practice. Neither the Commission nor the Alliance dealt with the matter during the Investigation Stage. It was then left to the Alliance, during the hearing process of the Complaint, to engage Dr. Lee, an expert in contract analysis and non-wage compensation valuation to undertake a detailed study. This involved, as already noted, the examination of the many collective agreements and benefit plans that existed during the life of the Complaint. These agreements and plans involved Canada Post and the two unions representing the CR complainant group and the PO comparator group. [923] Dr. Lee's finding, as expressed in his Report PSAC-55, challenged methodologically by Mr. Bass, was that current contract provisions for most forms of non-wage compensation were either "precisely the same or generally equivalent". Where differences did exist, Dr. Lee found them to be minor and, in most cases, did "not have a wage equivalent value which would be considered significant for the purposes of pay equity". He went on to conclude that "there is no difference in non-wage compensation which should be incorporated into the calculation of adjustments" which may arise for the CR complainant group. [924] Does Dr. Lee's work, despite Mr. Bass's criticisms which were reviewed earlier in this Section of the Decision, constitute a reasonably reliable response to the need to consider the non-wage elements under section 11 of the Act? [925] During the Investigation Stage of the Complaint, no costing of non-wage benefits was done by the Complainant or by the Commission despite the fact that subsection 11(7) of the Act calls for an identification of these elements as part of the definition of "wages". [926] Dr. Lee was engaged by the Complainant well into the hearing, and, as a result of the lateness of his employment, he had no ability to verify data pertaining to the benefits or to cost them. He did the best he could given the situation he faced. [927] Given these circumstances, the Tribunal drew on the spectrum approach used earlier to deal with the reasonable reliability of the job information used by the Professional Team in its job evaluations (paragraph [696]). The Tribunal concluded that it could not categorize Dr. Lee's Report and its results as being "upper reasonably reliable" or "mid-reasonably reliable". The Tribunal finds, however, that his methodology and its results were "lower reasonably reliable". [928] The fact that the analysis was accomplished at an awkward time, by one expert witness, and demonstrated that the wage equivalent values for the non-wage compensation components for the complainant CR's and the comparator PO's essentially balanced each other out, does not, in the Tribunal's view, mean that subsection 11(7) of the Act was not respected. Nor does it mean that the wage gap analysis was incomplete or necessarily inaccurate. [929] The Tribunal, therefore, finds that the Alliance, through the evidence of Dr. Lee, has met the requirements of the Act in considering the non-wage compensation elements of subsection 11(7) of the Act as part of the definition of "wages". [930] The Tribunal also finds that the Alliance has fulfilled this requirement of a prima facie case under section 11 of the Act by proving, based on Dr. Lee's evidence and, on a balance of probabilities, that there were essentially no differences in non-wage compensation between the subject CR and PO employees that should be considered in determining if there were any "differences in wages" under subsection 11(1). IX. Remedy A. Background [931] The provisions of the Act dealing with the Tribunal's jurisdiction to award remedies are as follows: Complaint Substantiated 53(2) If at the conclusion of the inquiry the member or panel finds that the complaint is substantiated, the member or panel may, subject to section 54, make an order against the person found to be engaging or to have engaged in the discriminatory practice and include in the order any of the following terms that the member or panel considers appropriate: (...) (c) that the person compensate the victim for any or all of the wages that the victim was deprived of and for any expenses incurred by the victim as a result of the discriminatory practice; (d) that the person compensate the victim for any or all additional costs of obtaining alternative goods, services, facilities or accommodation and for any expenses incurred by the victim as a result of the discriminatory practice; and (e) that the person compensate the victim, by an amount not exceeding twenty thousand dollars, for any pain and suffering that the victim experienced as a result of the discriminatory practice. Special Compensation 53(3) In addition to any order under subsection (2), the member or panel may order the person to pay such compensation not exceeding twenty thousand dollars to the victim as the member or panel may determine if the member or panel finds that the person is engaging or has engaged in the discriminatory practice wilfully or recklessly. Interest 53(4) Subject to the rules made under section 48.9, an order to pay compensation under this section may include an award of interest at a rate and for a period that the member or panel considers appropriate. [932] Clearly, the Tribunal has been bestowed broad remedial powers under section 53 of the Act to remedy the effects of discrimination when a human rights complaint has been substantiated under the Act. [933] As the Commission pointed out in its submissions, these remedial powers should ensure that the victims of discriminatory treatment or practice are "made whole." In addressing the assessment of the damages recoverable by a victim in either tort or human rights law, the Commission referred to the following statement made by Mr. Justice Marceau in the Morgan case: In both fields, the goal is exactly the same: make the victim whole for the damage caused by the act [sic] source of liability. Any other goal would simply lead to an unjust enrichment and a parallel unjust impoverishment.228 [934] One can, perhaps, best interpret "making the victim whole" as meaning restoring the victim to the position or status he or she would have been in had the substantiated discrimination not occurred. [935] It is also pertinent to note, as did the Commission in its submissions, Mr. Justice Hugessen's examination of paragraph 53(2)(c) of the Act in which he and his colleagues were considering an equal pay for work of equal value case: As I read this provision, it is a simple and straightforward authority to order the payment to a victim of lost wages resulting from a discriminatory practice. Such an order will always be backward looking and will result from the answer to the question 'what wages was this victim deprived of as a result of the discriminatory practice?' Nothing in the text justifies the view that such an award should be 'minimally afforded' or that its starting point should be restricted 'to the moment the complaint was filed'. A complaint of discrimination necessarily relates to practices which have predated the complaint itself; one can hardly complain of discrimination which has not yet occurred. Of course, the discrimination may be continuing so that the Tribunal will also order remedies for the future, but that fact should not blind us to the obvious need to remedy what has taken place in the past.229 [936] In the same aforementioned DND case, Mr. Justice Hugessen made the following statement, supported by the very extract identified earlier in paragraph [679] from S.M. Waddam's publication: In my view, it is well settled law that once it is known that a plaintiff has suffered damage, a court cannot refuse to make an award simply because the proof of the precise amount thereof is difficult or impossible. The judge must do the best he can with what he has.230 [937] There is another important contextual factor to consider which relates to the possible impact on an award for damages of any uncertainty about the nature, extent and value of the losses involved. This matter was addressed by Mr. Justice Marceau as follows: It seems to me that the proof of the existence of a real loss and its connection with the discriminatory act should not be confused with that of its extent. To establish that real damage was actually suffered creating a right to compensation, it was not required to prove that, without the discriminatory practice, the position would certainly have been obtained. Indeed, to establish actual damage, one does not require a probability. In my view, a mere possibility, provided it was a serious one, is sufficient to prove its reality. But, to establish the extent of that damage and evaluate the monetary compensation to which it could give rise, I do not see how it would be possible to simply disregard evidence that the job could have been denied in any event. The presence of such uncertainty would prevent an assessment of the damages to the same amount as if no such uncertainty existed. The amount would have had to be reduced to the extent of such uncertainty. (emphasis added)231 [938] Two more recent cases have come to the Tribunal's attention which illustrate the principle enunciated by Mr. Justice Marceau. One is Chopra v. Department of National Health and Welfare in which the complainant sought compensation for wage loss arising from his failure to attain acting status and to qualify as an eligible candidate in a competition for a more senior position in his department.232 The complainant was awarded damages by the tribunal which were very significantly reduced on the grounds of the relatively high level of uncertainty of his being successful in the final competition. This decision is currently the subject of a judicial review application before the Federal Court. [939] The second case is Singh v. Statistics Canada [1998] in which the tribunal found that the complainant had been discriminated against because of his age when his name was not added to an eligibility list for particular positions at Statistics Canada.233 Damages were, however, based on providing him with a position and allowances two classification rungs below the one sought by the complainant and the CHRC, on the grounds that "it is by no means certain that Mr. Singh's progress would have followed" the path he claimed.234 The decision was upheld by the Federal Court.235 [940] While the presence of uncertainty in determining the extent of damages should not, indeed must not, inhibit the Tribunal from awarding damages, that uncertainty can, nevertheless, result in a reduction, under some circumstances very appreciable, in the assessed value of the damages. [941] Given the classification, by the Tribunal, of the job information used in evaluating the CR positions and PO jobs, as "lower reasonably reliable," (paragraph [699]) the Tribunal finds there is present a significant degree of uncertainty. This uncertainty arises from the lowest rating on the "band of acceptance" which pre-empts an assessment of the wage loss damages to the amount that could be expected had the job information been rated at the "upper reasonably reliable" level - the most desirable level for a "pay equity" case. [942] A similar further element of uncertainty arises from the classification, by the Tribunal, of the non-wage forms of compensation as also being "lower reasonably reliable" (paragraph [927]). [943] Taking into account these elements of uncertainty which affect the very crucial aspect of determining the extent of the wage gap, it is, in the Tribunal's view, more likely than not that if the job information and the non-wage benefits had been "upper reasonably reliable," the resulting wage gap would have more accurately reflected reality. In other words, the greater the reliability of the job information and the non-wage benefits, the greater the accuracy of the wage gap determination. This determination is seminal to the extent of the award of damages. [944] Recognizing these elements of uncertainty in the state of the job information and non-wage benefits documentation, the Tribunal finds that it cannot accept the full extent of the wage gap as claimed by the Alliance and endorsed by the Commission. B. Remedial Components (i) Award of Lost Wages [945] On balance, the Tribunal favours the level-to-line Kervin/Commission methodology in determining the extent of the wage gap to be closed (paragraph [844]). Both Dr. Kervin and the Commission stated however, that their wage gap calculations were only estimates. Final costing of individual adjustments for each CR employee will require review of employee records in concert with Canada Post. [946] As noted above, the Tribunal finds that the job information and the non-wage compensation issues have created uncertainty in the determination of the wage gap. That uncertainty, in turn, calls for a discounting of the award of lost wages. [947] Unlike other sections of the Act, section 11 does not present a clear distinction between proof of liability and proof of damages. Nor does it present a clear methodology to measure damages arising after a finding of discrimination. It is, therefore, necessary for the Tribunal to address the distinction between proof of liability and of damages, as well as the means of measuring the possible damages. [948] Following the spectrum analysis already completed for the two elements of uncertainty, the Tribunal concludes that a wage gap determination based upon "upper reasonable reliability" evidence should, logically, give rise to a 100% award of lost wages, a determination based upon "mid reasonable reliability" to a 75% award, and a determination based upon "lower reasonable reliability" to an award of 50% or less. [949] Accordingly, the Tribunal concludes that the finally determined award of lost wages for each eligible CR employee, by whatever methodology, should be discounted by 50% in line with the lower reasonable reliability status of the relevant job information and non-wage forms of compensation. (ii) Back-Pay - The Compensation Period [950] The Commission has called for the awarding of lost wages back to October 16, 1981, the date of incorporation of Canada Post as a Crown Corporation. The Commission cited Mr. Justice Hugessen's decision in the DND case which recognized the ability of a tribunal to deviate from the Commission's practice of one year prior to the filing of a complaint, as follows: In ordinary circumstances, the present limit set by the Commission's practice of one year prior to the filing of the complaint seems to me to strike a reasonable balance between the competing interests involved. Like any limitation period, it is, of course somewhat arbitrary and I would temper such arbitrariness by holding that it could be varied by a tribunal if the facts in any particular case indicated that a longer or shorter period was warranted.236 [951] The Alliance also cited this case and submitted that the effective date for the calculations of lost wages should be October 16, 1981. Anything less would be, in the Alliance's view, unfair to the victims of systemic discrimination. [952] Canada Post submitted that the Alliance had not succeeded in establishing a prima facie case that any wage gap for which Canada Post could be liable under section 11 existed prior to the filing of the Complaint. Canada Post also pointed out that the tribunal in the Treasury Board (Phase II) case237, where the respondent admitted liability under section 11, did not award back-pay for any period prior to the filing of the complaint. The wage adjustment was ordered to run from the starting date of the JUMI Study - some 3½ months after the complaint had been filed. It was Canada Post's position that the facts in this current case support no retroactive payments. [953] Mr. Justice Hugessen in DND indicated that the reach of paragraph 53(2)(c) of the Act "will always be backward looking" in ordering the payment of lost wages resulting from a discriminatory practice.238 [954] The Complaint was filed on August 24, 1983 but during 1984 and 1985, it was not actively investigated by the Commission. The Alliance and Canada Post were pre-occupied during this period with other matters, particularly the development of the proposed System One job evaluation plan. The Commission reactivated its investigation in October 1985. [955] The Tribunal considers that given the systemic nature of the discrimination under section 11, there should be recognition of some period of retroactivity. At the same time, the Federal Court of Appeal in Morgan affirmed that in creating a period of compensation, common sense should apply and some limits need to be placed upon liability. [956] Given that there was no evidence presented to underline an argument that this Complaint should be treated differently, the Tribunal concludes that adherence to the Commission's frequent practice of limiting that period to one year prior to the filing of the Complaint would be a reasonable balance under all the circumstances. Therefore, the Tribunal finds that August 24, 1982 is the appropriate date to begin the compensation period. [957] In terms of the period of time the backpay should cover, it is noted that Alliance counsel advised the Tribunal, in June 2003, that the Alliance and Canada Post had entered into a Letter of Understanding, as of June 6, 2002, under their then current Collective Agreement, providing for the introduction of a new Job Evaluation Plan. The new Plan superceded the original Treasury Board classification standards and created six administrative levels A1 to A6, into which former CR's were to be reclassified, as appropriate. The implementation date for the new Plan was set for August 3, 2002, with the new wage rates taking retroactive effect as of June 3, 2002. [958] Alliance counsel stated that the resulting range of wage rates for the CR's arising from the new Plan was, in general, quite a bit higher than the wage rates for PO INT's and PO EXT's under the CUPW agreement expiring in January 2003. What does this all mean? [959] What it meant to Alliance counsel, in terms of its impact on this Complaint, was expressed as follows: "...it marks the outside boundary of this pay equity complaint".239 "...in all likelihood, this does represent the end of the complaint, the outer limit, the outer parameter of the complaint".240 [960] The position of Alliance counsel is reinforced by the fact that the Letter of Understanding of June 6, 2002, was a direct result of a Memorandum of Understanding (Appendix `D') of the then current Canada Post / Alliance Collective Agreement, expiring October 31, 2004. The Memorandum of Understanding recorded the concurrence of Canada Post and the Alliance (and Union of Postal Communications Employees) that the proposed new Job Evaluation Plan would "be free of gender bias and shall meet the requirements of section 11 of the Canadian Human Rights Act". [961] Accordingly, the Tribunal concludes that the back-pay period will extend from August 24, 1982 to June 2, 2002, after which there should be no wage gap between the complainant CR's and the comparator PO's. Furthermore, the Tribunal concludes that with the new wage rates for the former CR's taking effect from June 3, 2002, there will be no need for a "fold-in" into the base wage rates per level at that date, since the successor administrative A1 to A6 levels, as of that same date, were compatible with section 11. (iii) Interest [962] Subsection 53(4) of the Act provides for the inclusion of an award of interest at a rate and for a period that the Tribunal considers appropriate, in any order to pay compensation under section 53. Such an order is subject to the rules made pursuant to subsection 48.9(2) of the Act which reads as follows: Tribunal Rules of Procedure 48.9(2) The Chairperson may make rules of procedure governing the practice and procedure before the Tribunal, including, but not limited to, rules governing... (i) awards of interest. [963] The Commission indicated that in the past there was debate as to whether the Canadian Human Rights Tribunal had the authority to make awards of interest as there was no provision in the Act providing for such awards. The 1998 amendments to the Act added such a provision in subsections 48.9 and 53(4). [964] All three parties referred to Rule 9(12) of the Canadian Human Rights Tribunal Interim Rules of Procedure (dated January 8, 2000) which reads as follows: Awards of Interest 9(12) Unless the Panel orders otherwise, any award of interest under s. 53(4) of the Canadian Human Rights Act shall a) be simple interest calculated on a yearly basis at the Canada Savings Bond rate; and b) begin accruing from the date on which the discriminatory practice occurred. [965] The Commission submitted that interest consists of two elements, namely, compensation for the loss of use of money, and compensation for the decline of its value. It also noted that Rule 9(12) is an interim and not a final Rule of Procedure and permits the Tribunal to award interest otherwise than as delineated in the Rule. [966] The circumstances of this case with affected employees waiting over 20 years for a wage adjustment was, in the Commission's view, justification for a more generous award than Rule 9(12) would provide. The Commission called for an award of compound interest at the Courts of Justice Act rate, thereby providing fuller compensation.241 [967] The Alliance's submission was that the Tribunal should exercise its discretion to award interest at a higher rate and also favoured compound interest, calculated semi-annually, at the rate established by the Courts of Justice Act. [968] Both the Alliance and the Commission considered that their respective positions on the matter of compound interest were supported by Waddams, supra, which concluded that compound interest, as a principle, could be warranted under certain conditions. [969] Canada Post's position was that it would be inappropriate to award compound interest without demonstrating, as indicated in Morgan, a special need or circumstance to compensate for the actual loss sustained. In the opinion of Canada Post, neither the Commission nor the Alliance had presented any evidence to support an exceptional compound interest award or a rate of interest higher than the Canada Savings Bond rate. [970] Despite the protracted period of the current case and the resulting delays in reaching a conclusion for the complainant employees, the Tribunal finds that no special needs or circumstances were demonstrated in the evidence before it which would justify an award of compound interest. [971] The Tribunal therefore, concludes that simple interest should be payable on the finally determined award of lost wages, which should in turn be discounted by 50%. The simple interest should be at the Canada Savings Bond rate, beginning from the commencement date of the retroactive period, August 24, 1982. Calculations should be annual, using the Canada Savings Bond rate in effect on September 1st of each year concerned. (iv) Post- Judgement Interest [972] With the likelihood that there will be delays between the date of the Tribunal's final decision and the date of payment of awards to entitled employees, the Commission and the Alliance submitted that post-judgement interest should be paid in accordance with the provisions of the Courts of Justice Act. [973] The Tribunal agrees, subject to the proviso that any such post-judgement interest shall be calculated from the date of its Order, on the finally determined award of lost wages discounted by 50%. (v) Special Compensation [974] The Alliance submitted that the evidence supported a finding by the Tribunal that Canada Post wilfully engaged in a discriminatory practice and that special compensation should be ordered under subsection 53(3) of the Act. [975] The Alliance argued that, through no fault of their own, the affected employees have been waiting some 20 years for their Complaint to be resolved. The Alliance also argued that its earlier efforts to negotiate a solution at the bargaining table were rebuffed by the employer. [976] It was, as well, the Alliance's view that Canada Post had consciously avoided satisfying itself as to whether the work of the female-dominated CR group was of equal value to that of the male-dominated PO group. Instead, Canada Post had chosen solely to advance criticisms and arguments of a technical and legal nature designed to avoid its obligations under section 11 of the Act. [977] A further argument presented by the Alliance was the profound impact the Respondent's violation of section 11 has had on the mostly low wage earners of the CR group. Being deprived of the income comprising the wage gap can reasonably be seen, in particular cases, to have led to "a host of lost opportunities" which should be reflected in the Tribunal's remedial order. [978] Finally, the Alliance submitted that the disappointment and frustration associated with the length of time it has taken to obtain redress should be compensated in the form of damages for hurt feelings. [979] While recognizing that no amount of monetary compensation can properly eradicate the impact of so many years of underpayment, the Alliance submitted that employees in the CR group should each receive compensation pursuant to subsection 53(3) of the Act, to be determined at the Tribunal's discretion. The Alliance proposed that the award be prorated based on the number of full years worked by each eligible employee. [980] The Alliance further submitted that simple interest calculated pursuant to the Ontario Courts of Justice Act should be paid on the special compensation awards. [981] The Commission noted that pursuant to paragraph 53(2)(e) and subsection 53(3), the Tribunal is empowered to award compensation for pain and suffering and special compensation. The Commission indicated however, that in the circumstances of this case, it had taken no position on the Alliance's claim. [982] Canada Post submitted that it was not appropriate to award special compensation in this case and argued that the Alliance did not direct any evidence to the Tribunal of the nature required to support such a request. [983] Canada Post also submitted that the law respecting special damages is clear and was set out well by the tribunal in the Treasury Board (Phase II) case, as follows: We are of the view that an entitlement under s. 53(3)(b) of the Act requires an evidentiary basis outlining the effects of the discriminatory practice on the individuals concerned. An award for hurt feelings is personal and is usually awarded in the context of direct discrimination. During the course of a hearing a tribunal will assess entitlement after hearing from individuals about the effects of the discrimination upon him or her. (see R. v. Cranston (1997), T.D. 1/97 (C.H.R.T.)). In this manner the Tribunal is able to observe the complainant's demeanour while testifying and come to some conclusion whether, in the circumstances, an award for hurt feelings is called for. In our view the impact of delays giving rise to disappointments, frustrations, maybe even sadness or anger, although legitimate reactions, do not measure up, in our opinion, to the degree and extent of hurt feelings and loss of self-respect that s. 53(3)(b) is directed towards remedying. The discriminatory practice in this case has its genesis in societal attitudes and history, shared by both males and females. Attitudes about female work are undergoing change with increased awareness, education and legislation. The problem here is systemic and it has occurred in the Employer's pay system. To grant the Commission's and the Alliance's request would amount to an award for hurt feelings, en masse, which is not, in our view, what is contemplated by s. 53(3)(b) of the Act. We do not doubt some Complainants have experienced a sense of loss, which in some cases may be felt more strongly by some than others. We also appreciate the impracticality of individuals in this case testifying before the Tribunal as to the effects of the discriminatory practice upon them. However, these factors cannot compel us to make an award, en masse, under s. 53(3)(b).242 [984] The Tribunal notes that, in the aforementioned excerpt from the Treasury Board (Phase II) case, the tribunal was addressing paragraph 53(3)(b) from the pre-1998 amended version of the Act which read as follows: 53(3) In addition to any order that the Tribunal may make pursuant to subsection (2), if the Tribunal finds that (a) a person is engaging or has engaged in a discriminatory practice wilfully or recklessly, or (b) the victim of the discriminatory practice has suffered in respect of feelings or self-respect as a result of the practice, the Tribunal may order the person to pay such compensation to the victim, not exceeding five thousand dollars, as the Tribunal may determine. [985] The tribunal in the Treasury Board case was, therefore, dealing with the Commission's argument that, as a result of the discriminatory practice, the victims suffered from hurt feelings and a loss of self-respect (former paragraph 53(3)(b)). That tribunal was not addressing in this context whether a person had been engaged in a discriminatory practice wilfully or recklessly (former paragraph 53(3)(a)). [986] On the other hand, in the current case, the Alliance has submitted that Canada Post wilfully engaged in a discriminatory practice under subsection 53(3) of the current Act. It has made no direct mention of "pain and suffering" under paragraph 53(2)(e) of the current Act. [987] Canada Post's use of the Treasury Board (Phase II) case decision to support its dismissal of the Alliance's claim was therefore, in the Tribunal's view, somewhat misdirected as the Treasury Board decision focused squarely on the suffering of victims in respect of "feelings or self-respect" and not on a person engaged in a discriminatory practice "wilfully or recklessly". [988] In fairness to Canada Post, however, the Alliance does appear to have considered aspects of both paragraph 53(2)(e) and subsection 53(3), although it limited its specific written request to subsection 53(3).243 For example, while alleging wilful engagement of Canada Post in a discriminatory practice, it also submitted that its victims experienced considerable disappointment and frustration and may have suffered in respect of "hurt feelings", which seems to come close to the pain and suffering element of paragraph 53(2)(e). [989] Given the fact that the Alliance has limited its submission to the provisions of subsection 53(3), the Tribunal has focused on, but has not confined its decision to, that remedial dimension of section 53 of the Act. While the Alliance has argued that Canada Post contributed to the prolonged nature of the Complaint, and protracted the process through its technical and legal criticisms and arguments, the Tribunal does not find that sufficient detailed evidence was furnished to lead the Tribunal to conclude that Canada Post had been engaged in a discriminatory practice wilfully or recklessly. [990] The subject discriminatory practice is, after all, systemic discrimination which, as a concept, has most often been found to be unintentional. As well, the Act is a statute that seeks remedial corrective action rather than one that seeks to cast blame and punishment. [991] Based on the evidence presented, the Tribunal does not find that Canada Post has, more likely than not, been engaged in practicing systemic discrimination, wilfully or recklessly. Nor does the Tribunal find that sufficient evidence was provided to document the extent to which victims of the systemic discrimination, either individually, or corporately, may have experienced pain and suffering, difficult as this may be to demonstrate when dealing with a large body of employees. [992] Accordingly, the Tribunal finds that no award is justified under subsection 53(3) or paragraph 53(2)(e) of the Act. (vi) Legal Costs [993] The legal costs, including fees and disbursements associated with the adjudication of the Complaint involving over 400 days of hearings, "are enormous," argued the Alliance. To ensure full compensation for the victims, the Alliance felt it essential that the legal costs be taken into account. This has, in the Alliance's submission, occurred in the past where complainant counsel have contributed an important dimension to the presentation of the complainant's case, as the Alliance has done in this case. [994] The Alliance submitted that it is settled law that paragraph 53(2)(c) of the Act provides the Tribunal with the authority to award legal costs as well as compensation for other expenses incurred by the victim as a result of the discriminatory practice. Alliance counsel referred to a decision of the Canadian Human Rights Tribunal in Grover v. Canada (National Research Council), [1992] C.H.R.D. No. 12 (QL). In that case, the tribunal ordered the respondent to pay the complainant's legal costs pursuant to the assessment of the costs under the Federal Court scale. [995] The Alliance also referred to a decision of the Federal Court in Canada (Attorney General) v. Thwaites, [1994] F.C.J. No. 364 (T.D.) and to a tribunal decision in Nkwazi v. Canada (Correctional Service), [2001] C.H.R.D. No. 43 (QL). Both decisions were in the Alliance's submission, supportive of the inclusion of reasonable legal costs in the compensation award to a successful complainant. [996] Therefore, the Alliance has called for an order of the Tribunal to award its legal costs. It proposes that such costs be calculated on a substantial indemnity basis in accordance with the Tariff prescribed under the Ontario Courts of Justice Act and the Rules of Civil Procedure. [997] The Commission submitted that while there has, in the past, been some inconsistency in the awarding of legal costs, recent jurisprudence supports the authority of tribunals to do so. In particular, the Commission cited Nkwazi and Premakumar v. Air Canada, drawing on the following excerpt from the latter tribunal's decision: I am of the view that the remedial objects of the Canadian Human Rights Act are best attained by ensuring that successful complainants are able to recover their reasonable legal expenses associated with the prosecution of human rights complaints.244 [998] Given the 20-year life of the Complaint and the "immense" legal fees and expenses related to the complex litigation involving numerous expert and lay witnesses, the Commission supported a full award of legal costs in favour of the Complainant group. The Commission acknowledged the "very active role" played by the Alliance in the adjudication, "including bearing considerable costs for the gender neutral job evaluation process engaged in by Dr. Wolf and his colleagues".245 [999] The Commission concluded that these factors militate in favour of an award of full legal costs to the Alliance. [1000] Canada Post submitted that the current case was not an appropriate one for an award of legal costs. While the proceedings have been protracted and complex, Canada Post cited the tribunal's decision in Treasury Board (Phase II) case, where an award of legal costs was deemed to be inappropriate. [1001] Ambiguously, Canada Post in its concluding submission, requested the following ruling by the Tribunal: Based upon a broad and liberal interpretation of section 53(1) of the Act, that Canada Post Corporation be reimbursed for its reasonable legal costs in this proceeding as against the CHRC and/or the PSAC.246 [1002] The Tribunal observes that this has been not only a very protracted and complex case but also a rather tortuous one. Allegations have been made about Canada Post's possible role in this tortuosity, but it can also be alleged that the Commission was not entirely responsibility-free -- that it, too, may have contributed to that tortuosity, by the way it managed the Investigation Stage of the Complaint. It can also be alleged that even the Alliance made its own contribution to that tortuosity by not ensuring, during the formative stage of the Complaint, that the non-wage elements of compensation under subsection 11(7) of the Act were included in the wage calculations. [1003] However, as indicated earlier in this Decision, laying blame is not an objective of the Act, nor is it a course which the Tribunal has pursued. Having moved into the adjudicative tribunal arena, each party opted to act within its respective rights and decided and honed its strategies with respect to the Complaint. Each party engaged its own legal counsel and directed them accordingly. [1004] Given the unintentional nature of the alleged systemic discrimination in this case, and after carefully considering all the arguments and evidence made available, the Tribunal finds that each party should assume responsibility for its own legal costs, including related disbursements. (vii) Retention of Jurisdiction [1005] Both the Alliance and the Commission have requested that the Tribunal retain jurisdiction to deal with issues that they expect may arise in the implementation of the Tribunal's decision, on an "as-needed" basis. [1006] In the interest of assisting all parties, as may be appropriate, the Tribunal agrees with this request. X. JOINT UNION-EMPLOYER LIABILITY FOR WAGE DISCRIMINATION A. Canada Post's Submission [1007] Canada Post submitted that, were the Tribunal to find that the Complaint has been substantiated, the Alliance, as the union representing the Complainant group, and Canada Post, as the employer, should be held jointly liable for the discriminatory practice. [1008] The basis for this submission by Canada Post was their argument that as a principle, a union and an employer share liability for any clauses, including those that are discriminatory, which are negotiated in a collective agreement. [1009] In support of this position, Canada Post relied on the decisions in Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 790, and Canada Safeway Ltd. v. Saskatchewan (Human Rights Commission), [1997] S.J. No. 502 (Sask. C.A.). B. The Alliance's Position [1010] The Alliance submitted that the wording of subsection 11(1) of the Act clearly precludes the imposition of liability on anyone other than an employer. [1011] Further, the Alliance submitted that the decision in Bell Canada v. Communications, Energy and Paperworkers Union of Canada is binding authority concerning the interpretation of subsection 11(1).247 [1012] The Alliance urged the Tribunal to find that the cases cited by Canada Post could be distinguished. C. The Commission's Position [1013] The Commission's submissions underlined those of the Alliance. D. Tribunal's Analysis [1014] The decision of the Federal Court of Appeal in Bell Canada, cited by the Alliance as authority for their submissions concerning the interpretation of subsection 11(1) of the Act, contains strong statements to the effect that section 11 of the Act makes the employer alone liable for differences in wages with respect to work of equal value. For example, at paragraph 56, the Court noted as follows: For reasons of its own Parliament has chosen, in section 11, to make the employer alone liable for differences in wages with respect to work of equal value. It would fly in the face of the clear wording of the Act and the obvious intent of Parliament to find the unions equally liable either implicitly under section 11 or indirectly through sections such as section 10 for having participated in the establishment of different wages with respect to work of equal value. It may at first blush appear to be self serving and unethical for a union to use the mechanism of a complaint under section 11 to force for all practical purposes the revision of a collective agreement it has freshly negotiated, but absent bad faith -- the Motions Judge did not make a specific finding of bad faith in the instant case... -- it is not legally wrong. The Court applies the Act as it is, not as it might have been.248 [1015] This decision was rendered by one of the Tribunal's supervisory courts. The decision included the above-mentioned discussion of the very legislative provision that is in issue in the present Complaint. Is the Tribunal bound, therefore, to follow this decision? [1016] The Court prefaced its remarks in that same Bell Canada case with the stipulation that it was not providing a definitive interpretation of section 11 of the Act, as follows: The Motions Judge erred in totally ignoring sections 43, 44, and 49 of the Act and in his premise that '[w]hat is principally at issue in this case is the correct interpretation of s. 11' (Paragraph (8) of his reasons [at page 85]) That was simply not the issue at this stage. The decision attacked is the decision to request the appointment of a Human Rights Tribunal. It will be the duty of the Tribunal to determine whether the complaints are well founded or not and the Tribunal will in no way be bound by the interpretation given to section 11 by the investigator and presumably adopted by the Commission. Those who expected this Court to resolve issues with respect to the interpretation and application of section 11 without the benefit of the decision of a tribunal on this issue in the instant case will be disappointed; whatever was said by the Motions Judge should be considered as obiter and I make no observations upon any of it.249 [1017] As can be seen from the comments of the Federal Court of Appeal, the decision in Bell Canada, upon which the Alliance and the Commission relied in their submissions was fundamentally concerned with the legality of the Commission's decision, under section 49 of the Act, to request the appointment of a Human Rights Tribunal. [1018] Accordingly, this Tribunal has concluded that the question of joint union-employer liability under section 11 of the Act remains an open question for its decision. [1019] Subsection 11(1) of the Act clearly indicates on whose shoulders liability must rest. It states as follows: It is a discriminatory practice for an employer to establish or maintain differences in wages... (emphasis added) [1020] This wording can be contrasted to that of other provisions of the Act, such as section 10 which explicitly addresses employee organizations as well as employers, and section 7 which contains no qualifying language. [1021] Based on a clear and straightforward reading of subsection 11(1), the argument that a union may incur liability under this section must be rejected. Canada Post's reference to the Renaud and Safeway cases has not been helpful in this instance, as they both dealt with legislative provisions that addressed union liability, and are distinguishable on that basis. In this case, there is no such inclusion. In fact, the section of the Act is very clear in its notation that it is a discriminatory practice for an employer to establish or maintain differences in wages. There is no mention of other organizations, nor is there a lack of clarity in the wording. [1022] Therefore, the Tribunal cannot accept the submission of Canada Post on this issue of "joint liability". XI. ORDERS [1023] Based on all of its foregoing findings and conclusions, including a breach of section 11 of the Act, the Tribunal Orders that: The Respondent shall pay to each of its eligible Clerical and Regulatory employees an award for lost wages by closing the wage gap between employees of the Complainant and Comparator groups represented in this Complaint. The wage gap between the Complainant group and the Comparator group shall be determined and calculated by a level-to-line technique, preferably following the Kervin/Commission Wage Adjustment Model. The Respondent shall provide access to the individual employee records, as required, to enable final wage gap calculations to be determined. The finally determined award of lost wages ("pay for all purposes") for each eligible CR employee, by whatever methodology, shall be discounted by 50%. The back-pay compensation period shall extend from August 24, 1982 to June 2, 2002. Simple interest shall be calculated annually on the amount of the 50% discounted award of lost wages, and paid to each eligible CR employee for each year, or fraction thereof, of the back-pay compensation period. The simple interest shall be determined using the Canada Savings Bond rate in effect on September 1st of each year concerned. Between the date of this Decision and the date of the ultimate payment of the 50% back-pay award of lost wages, post-judgement simple interest shall be paid to each eligible CR employee at the applicable post-judgement rate prescribed by the Courts of Justice Act of Ontario or comparable provincial legislation. The Respondent shall be responsible for making remittances, as necessary, that may arise as a result of any of these Orders, with respect to statutory-based non-wage forms of compensation. The Complainant's claim for special compensation pursuant to paragraph 53(2)(e) or subsection 53(3) of the Act is hereby dismissed. The claims for legal costs are hereby dismissed. The Respondent's submission that both it and the Alliance should be jointly liable for any substantiated wage discrimination is hereby dismissed. The Tribunal shall retain jurisdiction to deal with issues that may arise in the implementation of its Decision, on an "as needed" basis. Signed by Elizabeth Leighton Signed by Gerald T. Rayner OTTAWA, Ontario October 7, 2005 1R.S.C. 1985, c. H-6. 2R.S.C. 1985, c. P-35. 3R.S.C. 1985, c. C-10. 4Ibid. at s. 5(2). 5R.S.C. 1985, c. L-2. 6G.A. Res. 217A(III), UN Doc. A/810 (1948) at 71. 7Convention concerning Equal Remuneration for Men and Women Workers for Work of Equal Value, 29 June 1951, I.L.O. C100. 819 December 1966, 993 U.N.T.S. 3 (entered into force 3 January 1976, accession by Canada 19 May 1976). 919 December 1966, 999 U.N.T.S. 171 (entered into force 23 March 1976, accession by Canada 19 May 1976). 10Ibid. 11Supra note 8. 12Canada, Report of the Royal Commission on the Status of Women (Ottawa: Royal Commission on the Status of Women, 1970). 1318 December 1979, 1249 U.N.T.S. 13 (entered into force 3 September 1981, ratification by Canada 10 December 1981). 14at 918. 15Canada (P.G.) v. Mossop, [1993] 1 S.C.R. 554 at 612. 16at 156. 172nd ed. (Toronto: Butterworths, 1983). 183rd ed. (Toronto: Butterworths, 1994). 19Supra note 17 at 87. 20Supra note 18 at 131. 21Ibid. at 288. 22Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at para. 22. 23"More than 1,000 new Calls to the Bar" Ontario Lawyers Gazette (Fall/Winter 2002). 24Parliament, Standing Committee on Justice and Legal Affairs, Minutes of Proceedings and Evidence, Issue No. 11 (17 May 1977). 25Supra note 12. 26 R.S.C. 1985, c. H-6, s. 27(2). 27S.O.R./1986-1082. 28Canada (Attorney General) v. Public Service Alliance of Canada, [1999] F.C.J. No. 1531 at para. 152 (F.C.T.D.). 29Ontario (Human Rights Commission) v. Simpson-Sears Ltd., [1985] 2 S.C.R. 536 at 558. 30Bell Canada v. Canadian Telephone Employees Association, [1998] F.C.J. No. 313 (F.C.T.D.). 31Canadian Telephone Employees Association v. Bell Canada (4 June 1997), Interim Ruling, T454/0991 at 19 (C.H.R.T.). 32Supra note 30 at para. 154. 33Public Service Alliance of Canada v. Canada Post Corporation (21 October 1998), Interim Ruling, T299/1392 at 24 (C.H.R.T.). 34Ibid. at 23. 35An Act to amend the Canada Evidence Act, Criminal Code and Canadian Human Rights Act, S.C. 1998, c. 9. 36Canadian Telephone Employees Association v. Bell Canada (26 April 1999), Interim Ruling, T503/2098 (C.H.R.T.). 37Bell Canada v. Canada (Human Rights Commission), [2000] F.C.J. No. 1747 (F.C.T.D.). 38Bell Canada v. Canada (Human Rights Commission), [2001] F.C.J. No. 776 (F.C.A.). 39Bell Canada v. Canadian Telephone Employees Association, [2003] 1 S.C.R. 884. 40Ibid. at para. 47. 41Ibid. at para. 50. 42Supra note 39. 43Ibid. at para. 47 44Ibid. 45Equal Wages Guidelines, S.I./78-155 (1978), as am. by S.I./82-2 (1982). 46Canada Post Submissions, Transcript, Vol. 409 at 45968. 47Ibid. at 45981. 48Ibid. at 45981-45983. 49[1977] 1 S.C.R. 271. 50Commission Reply Submissions at 16. 51Ibid. at 17. 52Ibid. at 18. 53[2001] A.J. No. 1535 (Alta. Q.B.), as cited in the Commission Reply Submissions at 26. 54Ibid. 55Supra note 7; Supra note 12. 56Supra note 49; Supra note 18. 57Supra note 18. 58Ibid. at 514-515. 59Ibid. at 517. 60Ibid. 61Commission Submissions at para. 15-16; Transcript, Vol. 415 at 46841. 62Supra note 39 at para. 47. 63Supra note 53 at para. 21. 64Ibid. at para. 22. 65Supra note 18 at 537. 66Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3. 67Canada Post Submissions, Transcript, Vol. 409 at 46026-27. 68Transcript, Vol. 414 at 46730-31. 69Supra note 17 at 87; See also supra note 18 at 131 and 288. 70Canada Post Submissions, Transcript, Vol. 408 at 45844. 71Canada Post Submissions, Transcript, Vol. 408 at 45873. 72Supra note 28. 73Public Service Alliance of Canada v. Canada (Department of National Defence), [1996] F.C.J. No. 842 (F.C.A). 74Supra note 17 at 87. 75Supra note 18 at 131. 76R.S.C. 1985, c. I-21, s. 12. 77Supra note 73 at para. 2. 78[1987] 1 S.C.R. 1114. 79Ibid. at paras. 34 and 40. 80[1991] C.H.R.D. No. 4 (C.H.R.T) (QL). 81Supra note 28 at para. 141. 82Ibid. at para. 150. 83Ibid. at para. 151. 84Transcript, Vol. 396 at 44388. 85 Supra note 28 at para. 152. 86Statement of Agreed Facts, Appendices J & L. 87Ibid. 88Statement of Agreed Facts, Appendix L; Transcript, Vol. 315 at 36800-3680l. 89Exhibit HR-1, Tab 3 at 24. 90Ibid. at 11. 91Transcript, Vol. 20 at 2626. 92Exhibit HR-2, Tab 2. 93Transcript, Vol. 20 at 2754. 94Transcript, Vol. 38 at 5288. 95Transcript, Vol. 57 at 7674-7675. 96Transcript, Vol. 3 at 327-328. 97Ibid. at 331. 98Ibid. at 333. 99Canadian Union of Public Employees (Airline Division) v. Canadian Airlines International Ltd., [1998] C.H.R.D. No. 8 (C.H.R.T.) (QL). 100Canada (Canadian Human Rights Commission) v. Canadian Airlines International Ltd., [2001] F.C.J. No. 1258. 101Canada (Canadian Human Rights Commission) v. Canadian Airlines International Ltd., [2004] F.C.J. No. 483. 102Ibid. at para. 20. 103Ibid. at para. 52. 104Ibid. at para. 32. 105Ibid. at para. 92. 106Ibid. at para. 25. 107Ibid. at para. 49. 108Ibid. at para. 46. 109Transcript, Vol. 49 at 6652. 110Transcript, Vol. 213 at 27026. 111Transcript, Vol. 214 at 27076. 112Transcript, Vol. 214 at 27113. 113Transcript, Vol. 216 at 27236. 114Transcript, Vol. 280 at 33124. 115Transcript, Vol. 295 at 34933. 116Transcript, Vol. 298 at 35204. 117Transcript, Vol. 296 at 35062. 118Transcript, Vol. 299 at 35253. 119Transcript, Vol. 318 at 37037. 120Exhibit HR-1, Tab 22. 121Exhibit PSAC-29 at 1. 122Exhibit PSAC-29, Appendix A. 123Ibid. 124Exhibit PSAC-180, Findings & Conclusions. 125Transcript, Vol. 368 at 41399; Vol. 369 at 41430. 126Public Service Alliance of Canada v. Canada (Treasury Board), [1996] C.H.R.D. No. 2 at para. 187 (C.H.R.T.) (QL). 127Supra note 28 at para. 79. 128Supra note 73 at para. 33. 129Trojan Technologies, Inc. v. Suntec Environmental Inc., [2004] F.C.J. No. 636. 130Merck & Co. v. Apotex Inc., [2004] F.C.J. No. 684 (T.D.). 131Exhibit HR-1, Tab 22. 132Exhibit HR-31, Tab 6 at 201. 133Transcript, Vol. 126 at 17241. 134Transcript, Vol. 35 at 4803. 135Transcript, Vol. 372 at 41789. 136Transcript, Vol. 127 at 17350. 137Exhibit HR-1, Tab 22. 138Exhibit R-225 at 3. 139Transcript, Vol. 136 at 18643. 140Supra note 138. 141Transcript, Vol. 172 at 22797. 142Ibid. at 22803. 143Exhibit HR-93 A. 144Ibid. 145Transcript, Vol. 144 at 19837. 146Transcript, Vol. 127 at 17345. 147Ibid. at 17374. 148 Exhibit R-235 at 66; Exhibit R-249 at 18. 149Exhibit R-235 at 77; Exhibit R-249 at 32. 150Exhibit R-249 at 80. 151 Exhibit R-455 at 22 152 Transcript, Vol. 105 at 14524. 153Supra note 151 at 12-14 and 16. 154Ibid. at 33. 155Ibid. 156Transcript, Vol. 130 at 17711. 157Exhibit R-615 at 1 158Ibid. 159Ibid. at 3. 160 Ibid. at 23. 161Ibid. at 25. 162Supra note 126. 163Ontario Nurses' Association v. Regional Municipality of Haldimand-Norfold (1991), 2 P.E.R. 10S (Pay Equity Hearings Tribunal). 164Exhibit R-235 at 77. 165Exhibit R-249 at chapter 6. 166R.S.O. 1990, c. P-7. 167Ibid. 168Alliance Submissions at 113. 169Ibid. at 167. 170Transcript, Vol. 210 at 26679. 171Service Employees International Union, Local 204 v. Ontario (Attorney General), [1997] O.J. No. 3563. 172Canada (Human Rights Commission) v. Canadian Airlines International Ltd., [2004] F.C.J. No. 483 at para. 51. 173Transcript, Vol. 136 at 18700. 174Exhibit R-615. 175Exhibit PSAC-29. 176Transcript, Vol. 194 at 25029. 177Transcript, Vol. 125 at 17031. 178Transcript, Vol. 163 at 21992. 179Transcript, Vol. 127 at 17350-17351. 180Transcript, Vol. 134 at 18298. 181Transcript, Vol. 174 at 22908. 182Transcript, Vol. 376 at 42167. 183Transcript, Vol. 173 at 22830. 184 Transcript, Vol. 314 at 36739. 185Transcript, Vol. 345 at 39204. 186Exhibit R-615. 187Transcript, Vol. 404 at 45223. 188Ibid. at 45335. 189S.M. Waddams, The Law of Damages, looseleaf (Toronto: Canada Law Book Inc., 2004) at 13-1 and 13-2. 190Ibid. 191Transcript, Vol. 127 at 17373. 192Exhibit PSAC-29. 193Exhibit PSAC-30. 194Supra note 126. 195Exhibit PSAC-55. 196Exhibits PSAC-29 and PSAC-30. 197Transcript, Vol. 151 at 20794-20795. 198Supra note 126. 199Exhibits R-433 and R-436. 200See paragraph [724] above. 201Commission Submissions, Chap. 13 at para. 532. 202Canada Post Submissions, Chap. 14 at 395. 203Ibid. at para. 89. 204 Ibid. at para. 95. 205Syndicat des employés de production du Québec et de l'Acadie v. Canada (Human Rights Commission), [1989] 2 S.C.R. 879 at para. 87. 206Supra note 28 at para. 116. 207Robichaud v. Canada (Treasury Board), [1987] 2 SCR 84. 208Supra note 78 at paras. 24 and 25. 209Ibid. at para. 44. 210Supra note 73 at para. 49. 211Transcript, Vol. 26 at 3564. 212Ibid. at 3565. 213Supra note 126. 214 See paragraphs [769] and [778] above. 215 See paragraphs [767] and [769] above. 216Transcript, Vol. 382 at 42856-57. 217Transcript, Vol. 151 at 20835. 218Transcript, Vol. 37 at 5120. 219Ibid. at 5121-5122. 220Commission Submissions at 187-188. 221Transcript, Vol. 148 at 20440. 222Transcript, Vol. 150 at 20600-20601. 223Transcript, Vol. 337 at 38705. 224Transcript, Vol. 148 at 20433. 225 Supra note 101 at para. 87. 226Transcript, Vol. 337 at 38727. 227Transcript, Vol. 148 at 20435. 228Canada (Attorney General) v. Morgan, [1991] F.C.J. No. 1105 at para. 19 (F.C.A.). 229Supra note 73 at para. 20. 230Ibid. at para. 44. 231Supra note 228 at para. 15. 232[2004] C.H.R.D. No. 16 (C.H.R.T.) (QL). 233[1998] C.H.R.D. No. 7 (C.H.R.T.) (QL). 234Ibid. at para. 286. 235[2000] F.C.J. No. 417. 236Supra note 73 at para. 49. 237Public Service Alliance of Canada v. Canada (Treasury Board), [1998] C.H.R.D. No. 6 (C.H.R.T.) (QL). 238Supra note 73 at para. 20. 239Transcript, Vol. 414 at 46825. 240Ibid. at 46829. 241R.S.O. 1990, c. C-43. 242Supra note 237 at paras. 496-498. 243Alliance Submissions, Chap. 17 at 551. 244[2002] C.H.R.D. No. 17 at para. 11 (C.H.R.T.) (QL). 245Commission Submissions, Chap. 13 at 570. 246Canada Post Submissions, Chap. 15 at 427. 247[1998] F.C.J. No. 1609 (F.C.A.). 248Ibid. 249Ibid. at para. 37. PARTIES OF RECORD TRIBUNAL FILE: T299/1392 STYLE OF CAUSE: Public Service Alliance of Canada v. Canada Post Coroporation DATE AND PLACE OF HEARING: September 21, 1992 to August 27, 2003 (415 days) Ottawa, Ontario DECISION OF THE TRIBUNAL DATED: October 7, 2005 APPEARANCES: James Cameron for the Complainant Peter Engelmann Fiona Campbell Fiona Keith Rosemary Morgan (1993-1994) for the Canadian Human Rights Commission Russell G. Juriansz, (1992-March 1998) Roy L. Heenan, (1998-2005) E. Joy Noonan, (1998-2005) Anne Irwin, (1993-2003) Guy Dufort, (1998-2003) Rob Grant, (2002-2003) Zygmunt Machelak, (1992) and (1998) Neelam Jolly, (1997-1998) Stephen Bird, (1998) Nitya Iyer, (2003) for the Respondent

2005 CHRT 4

CHRT

Communications, Energy and Paperworks Union of Canada v. Bell Canada

en

2005-01-27

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6509/index.do

2023-12-01

Communications, Energy and Paperworks Union of Canada v. Bell Canada Collection Canadian Human Rights Tribunal Date 2005-01-27 Neutral citation 2005 CHRT 4 File number(s) T503/2098 Decision-maker(s) Deschamps, Pierre; Sinclair, Grant, Q.C. Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE COMMUNICATIONS, ENERGY AND PAPERWORKERS UNION OF CANADA AND FEMMES-ACTION Complainants - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - BELL CANADA Respondent RULING ON DR. SHILLINGTON'S DOCUMENTS PREPARED IN CANADA POST AND GNWT PANEL: J. Grant Sinclair Pierre Deschamps 2005 CHRT 4 2005/01/27 INTRODUCTION [1] The Complainant, CEP, proposes to call Dr. Richard Shillington and qualify him as an expert in applied statistics to give evidence in this hearing. The Respondent, Bell Canada, seeks production of certain reports prepared by Dr. Shillington for the Canadian Human Rights Commission, which are listed, on pp. 14 and 15 of his Curriculum Vitae, filed as exhibit CEP-34. Bell says that it wants to use these documents for the purpose of its cross-examination of Dr. Shillington on his qualifications as an expert. [2] On consent of the parties, the Tribunal was given copies of these reports to review on a confidential basis. For the purpose of this ruling, they are referred to as GNWT, CPC-1 and CPC-2. GNWT [3] This consists of three reports, two dated March 28, 2001 and one dated March 19, 2001. The Commission claims settlement privilege with respect to GNWT. It argues that settlement privilege attaches because the reports were prepared for Ian Fine, Commission counsel, for the purpose of and during the course of settlement negotiations in Public Service Alliance of Canada v. Government of the Northwest Territories. In his affidavit filed on this motion, Mr. Fine states that the Commission relied on these reports in developing its position during the settlement negotiations. He also states that these confidential reports have never been disclosed or used by the Commission other than in the course of settlement discussions. NO PRIVILEGE FOR THE COMMISSION [4] The Commission asserts litigation privilege for CPC-1 and CPC-2. CPC-1 contains five reports prepared in 1996-97 by Dr. Shillington. CPC-2 is a six page report prepared by Dr. Shillington dated May 28, 1999. He testified that they were both provided at the request of Fiona Keith, Commission counsel in Canada Post. [5] Bell's first argument is that the Commission has no claim in law to litigation or settlement privilege. For this argument, Bell relies on the Tribunal's decision in Dhanjal v. Air Canada (1996), 28 C.H.R.R. (CHRT), D/367, D/422-3. [6] Dhanjal does not involve any issue relating to privilege. In the Addendum to its decision, the Tribunal commented on the conduct of Commission counsel, which the Tribunal characterized as excessively adversarial. It was the Tribunal's view that the role of Commission counsel is akin to the role of Crown counsel in a criminal proceeding as described by Sopinka J. in R v. Stinchcombe, [1991] 3 S.C.R. 326. This role is that of the Minister of Justice representing the public interest. (p. 341) [7] Stinchcombe established that there is a general obligation on the Crown to disclose to the defense the fruits of its investigation. The rationale being that such information is in the public domain and is not to be used for the sole purpose of obtaining a conviction, but to ensure that justice is done. (p. 333) [8] Under s. 51 of the CHRA, Commission counsel has the role of representing the public interest. By analogy, Bell argues that the Commission has the same obligation as the Crown, namely, to disclose all relevant information. Ergo, it cannot assert any privilege. [9] In our view, Bell's reliance on Stinchcombe involves a misapplication of the Stinchcombe facts to this case and an incomplete reading of Stinchcombe. Stinchcombe deals with a criminal proceeding, striking a balance between the Crown and the defense as mandated by s. 7 of the Canadian Charter of Rights and Freedoms and what flows from that. [10] Another distinction between a criminal proceeding and a Tribunal proceeding is found in the reasons of Sopinka J. where he points out that there is no duty on the defense to disclose anything to the prosecution. (p. 333) Bell has never taken the position that, as respondent in the hearing before this Tribunal, it has no obligation of disclosure. [11] More to the point, there is nothing in Stinchcombe that says that a claim of privilege is never available to the Crown. The reasons of Sopinka J. are to the contrary. He makes it very clear that the Crown has a general duty to disclose unless non-disclosure can be justified on the basis of the law of privilege. (p. 340) NO LITIGATION PRIVILEGE FOR CPC-1 OR CPC-2 [12] Bell next argues that even if privilege is available, the Commission has waived litigation privilege for CPC-1 and CPC-2. Bell relies on these facts. Public Service Alliance Commission's counsel in Canada Post asked Dr. Shillington to prepare an analysis for him. According to the Canada Post transcripts provided to this Tribunal, Dr. Shillington was a person who PSAC had been consulting with. He was helping PSAC with their understanding of the report and with the cross-examination of Dr. Killingsworth, an expert statistician who was called by Canada Post. [13] To do the analysis, Dr. Shillington needed certain data, which he asked for and received from Dr. Killingsworth. He then prepared the analysis which consisted, according to the transcripts, of five graphs and an Excel spreadsheet. In this ruling we referred to these five graphs and Excel spreadsheet as the June 1999 work. [14] In the course of his cross-examination, PSAC counsel asked Dr. Killingsworth if he agreed that the graphs and the spreadsheet were accurate and looked reasonable to him. Dr. Killingsworth replied that he was not in a position to answer this question, so PSAC counsel asked him to try and replicate Dr. Shillington's analysis. Dr. Killingsworth testified that he was able to produce very similar but not identical graphs, using, he said, the same data that he had provided to Dr. Shillington. [15] The graphs and spreadsheet prepared by Dr. Shillington were not entered into evidence. Canada Post counsel objected to them being so entered. The graphs prepared by Dr. Killingsworth were entered as PSAC exhibits 161, 162, 163, 164, etc. [16] Bell asserts that a claim of litigation privilege for Dr. Shillington's work for the Commission in Canada Post is unsupportable. In its submissions, Bell argues that it is a matter of public record that all or part of his work for the Commission was filed as PSAC exhibits 161, 162, and 163 by PSAC counsel when cross-examining Dr. Killingsworth. The Commission, says Bell, must therefore have revealed Dr. Shillington's work to another party, PSAC. [17] Bell next argues that, when considering the question of privilege, all of Dr. Shillington's work done for the Commission in Canada Post relating to the generic issues of pay equity must be dealt with as a package. That is, there is a nexus between the June 1999 work and CPC-1 and CPC-2 that is established by reference to the subject matter, the preparer and the nature of the issues. [18] Bell's concluding argument is that, having waived privilege over Dr. Shillington's June 1999 work, the Commission must also be taken to have waived privilege over all of his work done for the Commission in Canada Post relating to pay equity. [19] We do not accept these arguments. First of all, the Canada Post transcripts show that Dr. Shillington's graphs and spreadsheet was not work done for the Commission, but was prepared at the request of PSAC counsel. [20] Secondly, Bell has misstated the facts. It is not the case that all or part of Dr. Shillington's work for the Commission was filed as PSAC exhibits 161, 162, 163,etc. The facts are that none of his work has been so entered. PSAC exhibits 161, 162, 163, etc. were prepared by Dr. Killingsworth. [21] Thirdly, it is clear that PSAC counsel did not intend nor did he make any claim to shield Dr. Shillington's work from scrutiny by the other side when he presented it to Dr. Killingsworth for the purpose of cross-examination. [22] Finally, even assuming that Dr. Shillington's work for PSAC was prepared for the Commission and shared with PSAC counsel and was made public, we do not agree that there is a sufficient nexus between this work and CPC-1 and CPC-2. Bell, admittedly, has no authorities to support its argument that all of Dr. Shillington's work must be considered as a package. Bell's argument cannot rest on a mere assertion without more. NO SETTLEMENT PRIVILEGE - GNWT [23] As for GNWT, Bell challenges the Commission's assertion of settlement privilege. Bell says the settlement is a public document; it has been disseminated widely to the public and in particular, to current and former employees by way of an information campaign; and, there are documents attached to the settlement agreement that deal with technical and statistical issues, including methodology and foundation. [24] The policy behind settlement privilege is that parties should be encouraged to resolve their disputes without a trial. It follows then that the public interest, in encouraging the settlement of disputes, requires that documents or communications created for the purpose of settlement negotiations be privileged. (See Pirie v. Wyld,[1886] O.J. 188; Sopinka et al, Law of Evidence in Canada 2nd ed. 1999, Para. 14. 201; 14. 213) [25] It is also well established law that settlement privilege applies to communications made with the express or implied intention that they would not be disclosed and does not end if settlement negotiations fail or if settlement is concluded. And the privilege extends to subsequent proceedings unrelated to the previous dispute. (See Sopinka et al, Para 14.216 and 14.224; Middelkamp v. Fraser Valley Real Estate Board, [1992] B.C.J. No. 1947; 71 B.C.L.R. (2nd) 276 (B.C.C.A.)) [26] The evidence of Ian Fine is that Dr. Shillington's reports were prepared to assist during the settlement negotiations. It was never intended that they be made public nor were they used or disclosed other than for settlement purposes. [27] Does the fact that the settlement reached by the parties is a matter of public record mean that all documents used in negotiations leading to the settlement lose their confidentiality? This is Bell's position and in support, Bell referred to two cases, Hill v. Gordon-Daly Grenadier Securities, (2001) 56 O.R. (3rd) 388; and Gay v. UNUM Life Insurance Co. of America, [2003] N.S.J. No. 442. [28] In our opinion, neither case is helpful to Bell's argument. Hill involved a prosecution under the Ontario Securities Act for breach of trust. In furtherance of a settlement agreement between the Ontario Securities Commission and the defendants, the defendants made certain admissions in the settlement agreement. On the basis of these admissions, the OSC found that the defendants failed to deal fairly and honestly with certain of their clients. [29] These clients brought a class action against the defendants and, to support this action, wished to rely on the admissions of the defendants contained in the settlement agreement. The defendants claimed privilege over all the settlement documents. The Ontario Divisional Court held that privilege did not apply in these circumstances. [30] The Court reasoned that the OSC guidelines provided that any settlement agreement would be a matter of public record. The defendant entered into the settlement agreement fully knowing that whatever they admitted would be made public. They must be taken to have waived any claim to privacy or privilege. [31] This case is clearly distinguishable from the GNWT facts. The settlement in GNWT was not pursuant to a statutory scheme. It cannot be concluded, as it was in Hill, that any expectation of privacy or privilege was lost when the settlement itself, not the negotiations leading into settlement, were made public. [32] In Gay, the plaintiff commenced an action against the defendant UNUM Life Insurance Company claiming accident insurance benefits. This action was subsequent to an action that she had brought against certain doctors and a hospital for malpractice. The malpractice action was settled by mediation. The mediation contract had a confidentiality clause that all communications between the parties were privileged and without prejudice. [33] For the mediation, the defendant doctors had disclosed to the plaintiff reports by their experts relating to the question of their professional liability. The defendant insurance company requested production of the expert reports. The Court ordered production reasoning that once the expert reports were disclosed to the plaintiff, the confidentiality was lost whether or not designated without prejudice. [34] In our view, the facts in GNWT are so distinguishable from Gay as to make the conclusion in Gay untransferable. [35] For the above reasons, Bell's motion is dismissed. Signed by J. Grant Sinclair, Chairperson Signed by Pierre Deschamps, Member OTTAWA, Ontario January 27, 2005 PARTIES OF RECORD TRIBUNAL FILE: T503/2098 STYLE OF CAUSE: Communications, Energy and Paperworks Union of Canada, Femmes-Action v. Bell Canada DATE AND PLACE OF HEARING: November 30, 2004 December 1, 2004 Ottawa, Ontario DECISION OF THE TRIBUNAL DATED: January 27, 2005 APPEARANCES: Peter Engelmann For Communications, Energy and Paperworks Union of Canada Andrew Raven Patrick O'Rourke K.E. Ceilidh Snider For the Canadian Human Rights Commission Peter Mantas Guy Dufort Robert Grant For Bell Canada

2005 CHRT 40

CHRT

Mitchell v. Migisi Alcohol and Drug Abuse Treatment Centre

en

2005-10-13

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7157/index.do

2023-12-01

Mitchell v. Migisi Alcohol and Drug Abuse Treatment Centre Collection Canadian Human Rights Tribunal Date 2005-10-13 Neutral citation 2005 CHRT 40 File number(s) T1000/12004 Decision-maker(s) Sinclair, Grant, Q.C. Decision type Consent Order Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE KAREN MITCHELL Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - MISIGI ALCOHOL AND DRUG ABUSE TREATMENT CENTRE Respondent ORDER MEMBER: J. Grant Sinclair 2005 CHRT 40 2005/10/13 [1] The Respondent, Migisi Alcohol and Drug Abuse Treatment Centre, acknowledges that the complaint filed by Karen Mitchell against the Migisi Alcohol and Drug Abuse Treatment Centre dated October 26, 2001, is substantiated and that Ms. Mitchell's rights under sections 7 and 14 of the Canadian Human Rights Act to a harassment free work environment were infringed. [2] The parties agree to remedy the infringement by settling this case on the terms outlined below. [3] Therefore, on consent of all parties, the Tribunal hereby orders: The Respondent will issue an apology to the Complainant for the harassment she experienced and which acknowledges the Complainant's years of dedicated service to the clients of the agency. The Respondent, Migisi Alcohol and Drug Abuse Treatment Centre, will pay to the Complainant the sum of $10,000.00 for pain and suffering pursuant to section 53(2)(e) of the Act. This sum will be paid in equal installments of $833.33, the first installment to be paid by June 1, 2005 and the final payment to be made on or before May 1, 2006. The Respondent has affirmed its commitment to the obligations set out under the Canadian Human Rights Act and will take steps necessary to eliminate sexual harassment and gender discrimination in the workplace. The Respondent has confirmed that the employment of Mel Hardy was terminated in response to the complaints of Karen Mitchell. [4] This Order finally resolves all matters relating to this complaint. Signed by J. Grant Sinclair OTTAWA, Ontario October 13, 2005 PARTIES OF RECORD TRIBUNAL FILE: T1000/12004 STYLE OF CAUSE: Karen Mitchell v. Migisi Alcohol and Drug Abuse Treatment Centre ORDER OF THE TRIBUNAL DATED: October 13, 2005 PARTIES: Karen Mitchell Complainant Leslie Reaume For the Canadian Human Rights Commission Doug Keshen For the Migisi Alcohol and Drug Abuse Treatment Centre

2005 CHRT 41

CHRT

Morin v. Canada (Attorney General)

en

2005-10-14

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7153/index.do

2023-12-01

Morin v. Canada (Attorney General) Collection Canadian Human Rights Tribunal Date 2005-10-14 Neutral citation 2005 CHRT 41 File number(s) T739/4402 Decision-maker(s) Hadjis, Athanasios Decision type Decision Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE JEAN-LUC MORIN Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - ATTORNEY GENERAL OF CANADA Respondent DECISION MEMBER: Athanasios D. Hadjis 2005 CHRT 41 2005/10/14 I. FACTS A. Entry into the RCMP B. Field Training - Months 1 & 2 C. Field Training - Months 3 & 4 D. Field Training - Months 5 & 6 E. First Extension of Field Training - Month #1 F. First Extension of Field Training - Month #2 G. First Extension of Field Training - Month #3 H. Second Extension of Field Training - Weeks 1 & 2 I. Second Extension of Field Training - Week 3 J. Second Extension of Field Training - Week 4 K. Second Extension of Field Training - Weeks 5 & 6 L. Return to Montreal M. Official Languages Complaint II. ANALYSIS A. The Section 7 Complaint B. Prima Facie Case C. The RCMP's Explanation D. The Section 14 Complaint E. Was the Impugned Conduct Related to the Complainant's Colour? F. Was the Impugned Conduct Unwelcome? G. Was the Impugned Conduct Serious or Repetitive Enough? H. Notification to the Employer III. CONCLUSION [1] The Complainant alleges that he was discriminated against on the basis of his colour during his field training as a member of the Royal Canadian Mounted Police (RCMP), and that this discrimination was a factor in the subsequent termination of his employment, in breach of s. 7 of the Canadian Human Rights Act. The Complainant also claims that he was harassed by the RCMP on the basis of his colour during this training, in violation of s. 14 of the Act. [2] The Complainant and the Respondent were represented by legal counsel at the Tribunal's inquiry into the complaint. Counsel for the Canadian Human Rights Commission read into the record an opening statement on the first day of the hearing and thereafter did not attend nor participate in the hearing process. The hearing itself lasted 51 days and was conducted in Montreal, Vancouver and Ottawa. Thirty-nine witnesses testified. [3] For the reasons set out below, I have determined that the Complainant's colour was not a factor in his treatment while employed with the RCMP, or in his subsequent dismissal. He found his training very stressful. It was not an enjoyable period in his life. While the employer may have been very demanding of him during his training, I am not persuaded that discrimination based on his colour was a factor in this treatment. I have also concluded that he was not harassed on the basis of his colour. I. FACTS A. Entry into the RCMP [4] The Complainant is a black man from Montreal. In 1994, he enrolled in a special program administered by the RCMP to train Haitians and Canadians in police technology at the RCMP Training Academy in Regina (commonly referred to as Depot). Haiti was in a transitional political period at the time and the program was established to help the country equip itself with a corps of newly trained police officers. Graduates from the program planned on joining the Haitian force. The Complainant successfully completed the program but for reasons related to his dual Canadian/Haitian citizenship, he was unable to accompany the other recruits to Haiti. He returned home to Montreal from Regina to complete his college-level studies. Having by now developed a profound interest in police work, he applied with earnest to enter the RCMP's recruit training program at Depot shortly after obtaining his college diploma. He passed the numerous entrance exams administered by the RCMP and was accepted into the program in April 1996. [5] The Complainant opted to begin his instruction as soon as possible, which left him with no choice but to enter the English module. The French training was scheduled to commence several months later. The Complainant's first language is French but he had some knowledge of English at the time. The Complainant worked with bilingual text books while at Depot and with time, his knowledge of the language improved. The training lasted six months and he graduated in October 1996. B. Field Training - Months 1 & 2 [6] Upon completion of his training at Depot, the Complainant was assigned as a general duty officer to the RCMP detachment in Burnaby, British Columbia, to undergo his field training. This stage in a recruit's professional development is administered under the Field Coaching Program, also known as Recruit Field Training or RFT. It runs for six months. The recruit is a member of the RCMP during this period but the individual faces dismissal if he or she fails to pass the Field Coaching Program. During the RFT, a regular member of the RCMP is assigned to the recruit as his or her coach/trainer. The coach rides patrols with the recruit for most of this period and assesses the new member's performance along the way. Assessment reports are prepared at two month intervals, and by the time the last report is drafted at the six-month point, the recruit must satisfy all of the required criteria in order to pass his RFT. [7] Burnaby is, of course, a large municipality situated within the greater Vancouver area. An agreement exists between the Government of Canada and the City of Burnaby to have the RCMP provide it with policing services. Burnaby's RCMP detachment is the country's second largest. The Complainant had never visited Burnaby before and knew little about the city. He arrived there on about November 15, 1996, two weeks after graduating from Depot, and was met at the airport by his assigned trainer, Constable (Cst.) John Haney. [8] The Complainant's first contact with his coach was amiable. Cst. Haney invited the Complainant to stay at his home until the recruit could find his own accommodations. The Complainant began his first shift the day after his arrival. Cst. Haney introduced him to other RCMP employees. He set about helping the trainee find an apartment and a convenient bank branch at which to open an account. Despite this fairly friendly start to their working relationship, the Complainant alleges that within days, he was subjected to discriminatory conduct on the part of Cst. Haney. [9] The Complainant wanted to purchase a used car as soon as he arrived in Burnaby and had been perusing the classified ads in the newspaper. Many of the ads contained the term OBO, which is an abbreviation for the phrase or best offer in reference to the price being sought. The Complainant was unaware of this acronym, particularly since English was his second language. He mistakenly believed that it was the name of someone in the city who had many vehicles to sell. While riding in the patrol car with Cst. Haney, the Complainant mentioned that he intended to call the person named OBO about purchasing one of his cars. Cst. Haney began to laugh at the Complainant's mistake. The Complainant did not as yet understand why. Later on, they pulled up to a fast food restaurant to have breakfast with several other RCMP officers from the detachment. Cst. Haney told the others about the Complainant's comment and everyone began to laugh. It was at this point that the Complainant learned the meaning of the abbreviation OBO and the reason for the others' laughing. [10] From that day forward, Cst. Haney and other RCMP members began calling the Complainant by the nickname OBO. The Complainant acknowledges that he tolerated the term for three or four days and that in fact, he was even grinning along with the others as the story about the classified ads was recounted. However, the usage of the name continued to occur months later, and people he barely knew would call him by this name. The Complainant testified that he felt like a buffoon when addressed this way. He alleges, moreover, that the name has racial connotations. Or best offer, he contends, is a term that was used during slave auctions in pre-civil war America, and this particularly offended him. [11] Cst. Haney recalls the discussion in the patrol car about the classified ads, adding that both he and the Complainant found humour in the latter's mistake. But he insists that there was no racial connotation in his reaction. He merely used the term OBO thereafter as a playful nickname, a sign of affiliation with the rest of the team. According to Cst. Haney, many RCMP officers at the detachment were referred to by nicknames, including himself. This was typical of the camaraderie that existed between them, not unlike the relationship that develops amongst players on sports teams. He adamantly denies the Complainant's ever having indicated expressly or implicitly that he was offended or that the usage of the name was unwelcome. The Complainant either laughed along when addressed that way or did not react at all. Cst. Haney produced a home videotape of a party at his home, which was recorded by Cst. Haney's spouse on November 30, 1996, two weeks after the start of the Complainant's RFT. About a dozen guests can be seen on the tape, including the Complainant. At one point, Cst. Haney's spouse greets the Complainant from behind the camera by saying Hey, OBO, and he can be seen smiling and responding to her greeting with a pleasant demeanour. [12] The Complainant alleges that another incident of discriminatory conduct on the part of Cst. Haney occurred during the early stages of his RFT. Prior to a briefing session at the detachment, Cst. Haney observed the Complainant greet Cst. Ader Albert, who is also a black individual of Haitian origin. The Complainant claims that Cst. Haney made some gesture with his hands and remarked, Is that how you black men shake hands? The Complainant stated at the hearing that he felt ridiculed by the comment. Cst. Albert testified that he had some recollection of it but that he did not take any offence. He does not recall the Complainant demonstrating any outward objection. Cst. Albert interprets Cst. Haney's statement as his just trying to be funny. Cst. Haney has no recollection of the incident at all. [13] Over the course of the first two months of training, the Complainant alleges that Cst. Haney started to become excessively critical of his performance and their relationship began to deteriorate. The coach found fault in much of the Complainant's conduct. Speediness in getting to the scene of a call became a point of contention. Cst. Haney disapproved of the time it took for the Complainant to drive to a location. Occasionally, he got lost. The Complainant points out that he had just arrived in Burnaby and had not as yet become familiar with its geography. For this reason, he opted to rent an apartment within Burnaby, just so that he could remain within the city even when off-duty and get to know it better. The Complainant claims that Cst. Haney was impatient in this regard and that he began to use his watch to measure the recruit's response time in getting to the scene of a call. Cst. Haney would become so enraged with the Complainant's performance that he sometimes shouted at him and banged his hands against the car. On one occasion, the Complainant retorted to Cst. Haney that they were both adults and shouting was not called for. [14] The Complainant says the constant timing by Cst. Haney placed an inordinate degree of pressure on him to perform, which occasionally caused him to make errors. He felt harassed by this procedure. His fellow recruits were not subjected to this type of performance measurement and indeed, virtually none of the members of the RCMP who testified in this case recalled ever having had their driving timed in this manner during their field training, though several acknowledged being told during their RFT that they were taking too long to get to a scene or to execute their other duties. [15] Cst. Haney agrees that the Complainant expressed displeasure at the stress he was feeling from having his driving skills timed, but the coach maintains that he developed this tool as a mechanism to correct a deficiency in the Complainant's performance. It is important for a police officer to be able to respond quickly and safely to a call. Initially, the Complainant's response times were poor as was his navigation of the city's streets. The time tool proved effective, notwithstanding the Complainant's protests, and within about a month, his response times improved to an acceptable level. Cst. Haney concedes that none of the other recruits being trained by other coaches around the same time as the Complainant were similarly timed. He contends nonetheless that the timing tool he had developed for the Complainant was useful and creative and could prove helpful with other trainees as well. He does not recall any specific instance of having raised his voice or banging his hands over this issue, as alleged by the Complainant. Cst. Haney does not deny that his constructive criticism of the Complainant could have been construed as yelling by the Complainant. [16] Cst. Haney did not just time how long it took the Complainant to respond to a call. He kept track of how long it took his trainee to prepare police reports. Cst. Haney claimed that the Complainant was spending too much time on reports and that their quality was poor, both in terms of substantive content and form (language and spelling). He began timing him with the same goal of improving his performance. He claims that he had less success with the tool in this regard than he had with respect to lowering the Complainant's call response time. [17] According to the Complainant, the fact that his report-writing was being timed placed additional stress on him, which in turn affected his output. Moreover, he points out that unlike the other recruits, he was not permitted to write his reports using the computers available at the detachment and in the patrol car. Had he been permitted to do so, he would have been able to make corrections on-screen before printing and verify the text with a spell-checking utility. Instead, Cst. Haney told him to handwrite his reports and often instructed him to rewrite them whenever something was found lacking. Sometimes he had to rewrite them more than once. This naturally ended up consuming even more time. Cst. Haney was also critical of the Complainant's handwriting, insisting that he print his letters and not use cursive writing when filling out forms and reports, or even when entering information in his notebook. The Complainant submits that his handwriting was neat and that these comments were unnecessary. He feels that he was singled out by Cst. Haney and was treated differently from the other recruits. Cst. Haney was of the view that it was important to learn to write reports by hand, as computers were not always available to officers. Neat handwriting was also viewed as essential by him. The coach who had trained Cst. Haney during his RFT had always insisted on these points. Cst. Haney wanted to pass the benefits of this training on to the Complainant. [18] Another of the tools used by Cst. Haney was a daily logbook. Starting in mid-December 1996, Cst. Haney began recording the Complainant's activities during each shift. At the end of the day, the Complainant would read the logbook and write a self-assessment of his performance on a scale of 1 to 3, from poor to excellent. The coach would then enter his own assessment based on the same scale, following which there would be some discussion about how their respective conclusions were reached. Cst. Haney wrote suggestions on how improvements could be made. On most days, they both gave identical scores, usually a 2. This rating system was used for a little over a month, ceasing only in mid-January 1997. However, Cst. Haney and other senior officers involved in the Complainant's training continued writing summaries of his performance in the logbook thereafter, up until the end of the initial RFT period. Cst. Haney testified that he used the logbook to identify and have the Complainant understand the deficiencies for which improvement was needed. [19] The Complainant was annoyed by the logbook. Its use began immediately following Cst. Haney's alleged outburst in the patrol car to which the Complainant had voiced his objections. It is his perception that the coach began using the logbook as a way to retaliate against him. [20] At the detachment's Christmas party, the Complainant had the opportunity to speak to his supervisor, Corporal (Cpl.) Peter Fischer, and complain about Cst. Haney's difficult approach and his yelling. Cpl. Fischer took the complaint under consideration. He consulted his own supervisor, Sergeant (Sgt.) Dwight Watts, and met with Cst. Haney to hear his point of view. The coach explained that deficiencies had been identified regarding the Complainant. Cst. Haney maintained that he was addressing these problems and trying to correct them in a manner that was not overly harsh. After having received this explanation, and mindful that the Complainant had not asked for a new trainer, Cpl. Fischer directed the Complainant to comply with the coach's instructions. [21] In a separate conversation in early January 1997, Sgt. Watts asked the Complainant if he wanted to change trainers for the balance of his field training. The Complainant turned down the offer. He explained at the hearing that because things were already going so badly for him, he did not want to worsen them by developing an image as someone who flees from a difficult situation. Two other witnesses at the hearing, Cst. Maxime St-Fleur and Cst. Oakland Knight, gave evidence that they requested and were provided with new trainers during their RFT at the Burnaby detachment. Interestingly, both of these recruits were also black and Cst. St-Fleur was a francophone of Haitian origin from Quebec, just like the Complainant. They did not pass their RFT after the initial six-month period and were only successful after having their RFT extended by several months. They are both active regular members of the RCMP today. [22] On January 20, 1997, Cst. Haney issued the Field Coaching Program Assessment Report for the Complainant at the two-month point. The Complainant testified that he had expected a fairly positive evaluation, based on the entries in the logbook, where the average rating of 2 predominated. Assessment Reports contained a grid listing 28 criteria on the basis of which candidates were rated superior, competent or needing improvement. It came as a shock to the Complainant to learn that Cst. Haney had marked him as needing improvement in ten of the categories. These areas included his ability to define problems, his aptitude at communicating in writing, his knowledge and application of law, policy and procedures, his proficiency at information gathering, and his investigation and evidence gathering skills. His driving and officer safety skills were also noted as deficient, as was his decision-making ability. [23] The Assessment Report form contained a section where the recruit would provide his own remarks. The Complainant wrote that he agreed with Cst. Haney's comments and that he was willing to improve his English grammar. He added that he appreciated the training given by his coach so far and would do his best to improve his skills in the future. [24] The Complainant testified that in reality, he did not agree at all with Cst. Haney's assessment of his performance, noting that he was not found lacking in any of the identified areas when he graduated from Depot. Several witnesses remarked, however, that one's achievements within the academic environment at Depot do not necessarily ensure similar success in the real-world environment experienced while training in the field. Cst. Haney testified that in any event, finding a trainee in need of improvement merely meant that some work was required in order for the candidate to meet the required standard. He noted that many of the Complainant's deficiencies were intertwined with one another. For instance, he had observed that the Complainant had a poor knowledge of provincial and municipal statutes and regulations enforced by the RCMP at the Burnaby detachment. This resulted in the making of ill-advised decisions in various areas, such as crime scene investigations and evidence gathering. Cst. Haney pointed out that he had included words of encouragement in the Assessment Report as well. He made the point of writing that the Complainant is an intelligent individual who has the ability to succeed. He also recognized in the report that some of the difficulties experienced by the Complainant in his drafting may have been because English was his second language. [25] The Complainant was particularly upset that the Report failed to mention any of the positive or commendable acts performed by him during the course of the first two months of training. One incident that stood out related to a patron in a local restaurant where the Complainant and Cst. Haney were also eating on November 27, 1996. The Complainant noticed that the man began choking on some food, and was unable to breathe. The Complainant intervened immediately and applied the Heimlich manoeuvre to dislodge the obstruction, while Cst. Haney called on his radio for an emergency response team. The Complainant's efforts were successful and the patron's life was saved. Following the incident, Cst. Haney merely commented to the Complainant that he had done a good job, by the way, as they sat back down at their table to finish their meals. [26] Back at the police station, the Complainant claims that Cst. Haney made no particular effort to inform any superior officers about his actions nor were they reported in any official manner to other members of the RCMP at the detachment. Cst. Haney testified that both he and the Complainant recounted the story to their colleagues and supervisors when they returned to the station. But Cst. Haney did not think it appropriate that a memo be drafted up and circulated by him applauding their own deeds. It would have been viewed as self-promotion. Such recognition was better left to their supervisors. Indeed, several days later, following the receipt at the detachment of a letter from the restaurant patron, thanking the Complainant and Cst. Haney for saving his life, Superintendent R.W. Fenske, who was the officer in charge of the Burnaby Detachment, wrote a memorandum commending them for their conduct. A copy of the letter was placed in the Complainant's personnel file. Yet no similar mention of the Complainant's actions was included in the two-month Assessment Report prepared by Cst. Haney. [27] Interestingly, Cst. Haney's involvement in the incident was specifically mentioned with commendation in his annual performance review, prepared by his supervisor some months later. Cpl. Fischer testified that annual performance reviews differ from RFT Performance Assessments. Annual performance reviews are intended to reflect all of an officer's documented exploits, whether positive or negative. Had the Complainant passed his RFT, the event would have been recorded in his annual performance review as well. On the other hand, Performance Assessment Reports are only concerned with documenting whether a recruit has reached the level of competence in each of the Field Training Standard's 28 criteria. C. Field Training - Months 3 & 4 [28] Over the next two months, Cst. Haney noted some improvement in the Complainant's skills but he remained dissatisfied with respect to certain areas assessed. The trainer was particularly troubled with the quality of the Complainant's note-taking and report-writing. Cst. Haney had advised the trainee to adopt the trainer's own rather formal style of taking notes. It appears that the Complainant did not emulate this style but evidence was led by other members of the RCMP that ordinarily, officers could adopt their own note-taking method, provided there was sufficient clarity for subsequent use at court proceedings. Cst. Haney remarked that no matter which note-taking method is employed, certain facts must be recorded under all circumstances, and the Complainant was failing to do so, even as he neared the end of his fourth month of training. [29] On the issue of report-writing, Cst. Haney continued to find that the Complainant had difficulty putting the right information into his documentation and that he took too long to prepare it. Yet Cst. Haney was confident that the Complainant could do better. On at least one occasion when the Complainant was instructed to redo his report, the final outcome was much improved. There are numerous entries made in Cst. Haney's logbook during this period in which he states that the Complainant is capable of achieving success with greater effort. The logbook also documents increasing resistance from the Complainant whenever instructed to redo his work. [30] Cst. Haney also identified problems relating to the Complainant's decision-making while in the field. The trainer advised that the Complainant needed to augment his knowledge base of law, policy and procedures, in order to improve in this area. Cst. Haney also encouraged the Complainant to ask questions and draw from the experience of others to assist in his decision-making. [31] The Complainant, on the other hand, disputes these assessments and accuses Cst. Haney of not fulfilling his duty to properly train him. According to the RCMP's Field Coaching Program Training Standard, trainers were expected to interact respectfully with their trainees and establish a positive work relationship. The recruit was supposed to feel comfortable with his or her coach. The coach in turn was to lead by example. Such a rapport never developed between the Complainant and Cst. Haney. The trainer's constant criticisms left the Complainant extremely uncomfortable. He would go to work wondering what else would be found deficient about him that day. [32] If his skills were lacking in some way, he contends that his trainer did not provide him with sufficient feedback on how to improve them. The Complainant was left to better himself on his own. He therefore enrolled in an English language training course. He began studying the applicable statutes and regulations, and he viewed numerous training video cassettes in his off-hours, usually at the detachment. He often stayed in the office after work. Despite these extra efforts, the Complainant alleges that Cst. Haney did not offer any positive reinforcement. To the contrary, one day in late February 1997, Cst. Haney told the Complainant that the police officer's profession was not for him and that he should consider changing careers. The Complainant replied defiantly that he wanted to succeed and would not resign. [33] Despite the lack of support from his coach, the Complainant felt confident that with all the extra effort he was expending, his assessment for the second two-month period would improve. Part of his confidence stemmed from the fact that he began patrolling the district on his own starting in late January 1997. He was more relaxed without his trainer next to him, and felt comfortable enough to meet any challenges that he faced. Cst. Haney testified that the Complainant, as is the case with all recruits when they do their first solo patrols, was shadowed by his coach and other officers in separate vehicles during these shifts. Consequently, Cst. Haney backed up the Complainant and arrived on the scene on all but the most routine calls. Cst. Haney recalls that while on these solo patrols, the Complainant on several occasions failed to follow appropriate procedures in responding to calls and investigating incidents. [34] The four-month Assessment Report, prepared on March 17, 1997, confirmed that the Complainant had improved to the level of competence in several areas, namely his driving and officer safety skills, as well as his abilities to define problems and gather information. But Cst. Haney also concluded that the trainee still needed improvement in his communication skills, and his knowledge of law, policy and procedures. In addition, he needed to improve his skills at taking statements and at taking control of situations when responding to an incident. In all, Cst. Haney deemed the Complainant as needing improvement with respect to six of the 28 criteria, down from the ten cited in the two-month Assessment Report. The trainer encouraged the Complainant to remain positive and determined during the final two months of the RFT, and urged him to devote an extra effort to the development of his skills. Cst. Haney set out a list of activities to assist the Complainant in improving his knowledge of law, policy and procedures, which included attending a series of weekly off-duty tutorial sessions with Cst. Haney. [35] The Complainant was disappointed with the Report. It was clear in his mind that he was facing an injustice. Despite all his hard work and efforts, his situation was not improving. He was in perpetual conflict with Cst. Haney and it was evident that the trainer wanted him to fail. The Complainant believes that Cst. Haney's intentions were rooted in prejudice against him and his colour. The Complainant says an incident that occurred just prior to the preparation of the four-month Assessment Report confirms his suspicion. [36] While both he and Cst. Haney were changing into their uniforms in the locker room at the police station one day, the trainer called the Complainant Kirby Puckett Ass. The Complainant claims that he took offence at the remark, actually interpreting the first word as being curvy and viewing it as a reference to the physical features of his lower torso. More importantly, he associated it with certain racial stereotypes regarding persons of African ancestry. The Complainant would only come to learn later on, when he contacted the Canadian Human Rights Commission to file his complaint, that Kirby Puckett is a well-known African-American baseball player. The Complainant testified that Cst. Haney used the term (as well as OBO) numerous times, right until the end of training with this coach, in May 1997. The Complainant says that he never expressly voiced an objection to the term since his career depended on Cst. Haney's assessment and he did not want to risk a confrontation with him. [37] Cst. Haney does not deny using the term Kirby Puckett Ass, but offers a context for the remark. He and the Complainant, together with several other officers, had been involved in a chase of a suspect on foot and by car through the streets of Burnaby. Cpl. Fischer later issued a memo congratulating all of the officers on their excellent job apprehending the individual. At one point during the pursuit, while Cst. Haney was running after the suspect, the Complainant got out of his patrol car and gave chase on foot as well, behind Cst. Haney. Back at the police station some time later, Cst. Haney asked the Complainant why he chose to leave the vehicle and run behind him. The Complainant answered that he was a faster runner than the coach and it would have been easier for him to catch up to the suspect. Cst. Haney disagreed and they engaged in a back and forth conversation trying to convince each other who is faster. At some point during this discussion, Cst. Haney called the Complainant, in what he described as an ironic, satirical tone, Kirby Puckett Ass. [38] Cst. Haney was aware that Kirby Puckett is an extremely powerful baseball player known to have a large, powerful torso, who was inducted into the Baseball Hall of Fame because of his athletic talent. His comment therefore related to the running prowess being claimed by the Complainant, whom he viewed as a fit individual of a muscular build and appearance similar to Kirby Puckett's. The sarcastic tone was meant to imply that although the Complainant was claiming to possess the ability of Kirby Puckett, in actual fact he did not. The player's race did not cross Cst. Haney's mind and he never intended to use the term as a racial epithet. Cst. Haney recalls that this conversation was very jovial in nature. In fact, the Complainant turned to another officer walking by and told him what Cst. Haney had just said. The other person replied that this was OK because sometimes we all call [Cst. Haney] `Dumbo', a nickname that alluded to the shape of his ears. When the Complainant heard this, he bent over laughing as he repeated the word Dumbo back to himself several times. Cst. Haney claims that the Complainant called him Dumbo other times thereafter. [39] Cst. Haney insists that he used the term Kirby Puckett Ass in no more than five instances, and only within days of this discussion in the locker room. He maintains that the Complainant never objected to the use of the term and that had he done so, the trainer would have ceased using it immediately. Overall, according to Cst. Haney, he and the Complainant used nicknames very infrequently, and called each other by their proper first names 99% of the time. [40] The Complainant claims that Cst. Haney's attitude outside the workplace demonstrated a prejudice against him as well. The Complainant's fiancée, Natalie Cerrato, joined him in Burnaby in late December 1996. She worked at a local sandwich shop as well as at the detachment, as a volunteer. Cst. Haney knew her and yet, when she served him at the sandwich shop a few times or when they sometimes crossed paths at the detachment, he ignored her. Furthermore, aside from a couple of occasions, Cst. Haney and the Complainant never socialized together on their days off work. The coach never invited the Complainant and his fiancée together to his home. [41] Several RCMP officers testified, however, that it was not necessarily a normal practice for members to develop personal friendships amongst themselves and to meet outside of work. Cst. Haney stated in his testimony that there was always an open invitation extended to the Complainant to visit his home in Coquitlam, and indeed, he had come over several times during the first weeks of the RFT. But Cst. Haney also noted that by the time Ms. Cerrato arrived in Burnaby, his relationship with the Complainant had already become strained at work. It had evolved almost exclusively into a trainer/recruit relationship. There was a separation in their roles, which may have translated into a little additional stress that even extended to his contacts with Ms. Cerrato. Cst. Haney added that he did not recall ever being invited over to the Complainant's home. D. Field Training - Months 5 & 6 [42] As they entered the fifth month of the RFT, Cst. Haney commenced the weekly law, policy and procedures tutorial sessions with the Complainant, which he had recommended in the four-month Assessment Report. The Complainant acknowledges that these sessions were organized at the coach's initiative. Cst. Haney conducted them at his home, outside of working hours. Both he and the Complainant received an overtime allowance for this activity. The meetings lasted for hours at a time during which they reviewed a multitude of scenarios. The sessions ceased after the third week, probably because Cst. Haney was away from the detachment on training. They never resumed, to the disappointment of the Complainant. Cst. Haney testified that he had not intended to tutor the Complainant to the end of the RFT. The goal was to determine in which areas the Complainant was still deficient, and thereafter it would be up to the trainee to concentrate his studies even further in those areas. [43] As in the preceding period, the Complainant and Cst. Haney only occasionally worked together in the same patrol car during the fifth and sixth months of the RFT. The Complainant regularly drove solo. He also completed rotations in other sections of the detachment as is required of all recruits. [44] On April 27, 1997, Cst. Michel Merritt arrived on the scene of a call to which the Complainant, who was working solo, had been dispatched as primary responder. A landlord and a tenant had engaged in a dispute regarding the use of the leased premises, which had developed into a shoving match. Cst. Merritt later criticized the Complainant for concentrating too much on trying to resolve the civil dispute between the parties and not focussing on the criminal assault investigation for which he had been called to the scene to conduct. Cst. Merritt noted this observation in the logbook. [45] Cst. Haney prepared the final Assessment Report on May 17, 1997. He concluded that the Complainant needed improvement in the same six areas cited in the second report but added that improvement was also needed in a seventh field: records management. The coach provided a detailed narrative with the report, which referenced several incidents in support of his findings. [46] The concern regarding the Complainant's record management skills stemmed from his difficulty in keeping his files current and responding promptly to requests made by his supervisors, Crown counsel and others. Cst. Haney noted that the Complainant was extremely unorganized and he failed to adopt several suggestions to improve this weakness. Files were often found torn and tattered at the bottom of his duty bag. The Complainant brought the bag with him to the hearing. It is soft-sided and resembles an athletic bag. In my view, it is not a case in which one would ordinarily expect to see files carried. [47] Cst. Haney noted that he still had some concerns about the Complainant's communication skills in his second language, but was pleased to see that he had enrolled in English courses outside of working hours. Of greater concern was the Complainant's ability to prepare his incident reports and all related documents without undue delay. Cst. Haney found that the reports were often inadequate and lacked the necessary detail, which resulted in their having to be done over, thereby further delaying their completion. According to Cst. Haney, the Complainant still required considerable guidance and supervision in the drafting of documents. [48] The trainer remarked that the Complainant had notably upgraded his knowledge of law, policy and procedures over the previous months, but further improvement was still needed. Several instances where this deficiency emerged were raised. While the Complainant was on a rotation with another unit of the detachment, a replica handgun was found and seized. There was an initial suspicion that the gun had been used in a series of robberies. The Complainant was assigned the task of processing the item as an exhibit for possible criminal charges. When he returned to the station, he was unable to locate any members of the General Investigation Section (GIS) to whom he was to hand over the gun. So he left it unattended in his office basket for several hours, thereby breaking the continuity of its possession. As things turned out, the initial suspicion regarding the gun's history was unfounded and no charges were laid. But according to Cst. Haney, the Complainant should have conducted himself as if the item was an exhibit. Cst. Haney confronted the Complainant over this matter. There was a strong reaction from the Complainant who protested that the trainer was being overly demanding. [49] The Complainant testified that he had felt wronged by Cst. Haney's criticism. He had only placed the gun in his basket after having been told by the investigating GIS member back at the crime scene that no criminal charges were going to be laid relating to the gun and that the Complainant should dispose of it. In these circumstances, the continuity of its possession was no longer of any relevance. The Complainant tried to explain these facts to Cst. Haney but the coach refused to accept his explanation. [50] A similar incident occurred regarding the seizure of a small amount of marijuana in respect of which there was not going to be any prosecution, a so-called no case drug seizure. The Complainant was instructed to take possession of the seized drugs and initiate the process for their destruction. This required that he complete a fairly complex form. Instead of doing so immediately, the Complainant decided to store the narcotics in his duty locker for a month, in contravention of detachment and RCMP policy. Cst. Haney wrote in the Assessment Report that this was due to the Complainant's procrastination. He added in his testimony that if the Complainant found the task of filling out the form daunting, he should have sought out assistance, instead of just leaving a controlled substance to sit in his locker. Cst. Haney was particularly concerned that this type of error was still occurring six months into his field training. [51] The Complainant disagrees entirely with how Cst. Haney presented these events in his Report. The drugs were seized while the Complainant was on rotation in a neighbourhood liaison unit under the supervision of Constable Anthony Akow. After the suspects in possession of the narcotics had been detained, Cst. Akow directed the Complainant to store the drugs in his locker until such time as the suspects were interviewed and a decision was made on whether to charge them with an offence. One week later, and in each of the ensuing two weeks, the Complainant asked Cst. Akow if a decision had been made and he was told no. Finally, about one month after the date of the seizure, Cst. Akow told the Complainant that charges would not be laid and instructed him to proceed with the destruction of the drugs. Accordingly, he completed the requisite form pursuant to RCMP standards. It was when Cst. Haney saw the recruit filling out this form that he accused him of having procrastinated and not complied with the applicable policy and procedure. The Complainant attempted to explain several times over that he was simply following orders, but Cst. Haney refused to listen and did not try to consult Cst. Akow for confirmation of the Complainant's explanation. The Complainant testified that he felt crushed and victimized by the treatment he received at his coach's hands. [52] The Complainant called Cst. Akow as a witness at the hearing. His account of the facts is not consistent with the Complainant's. He recalls telling the Complainant on the very evening of the seizure that no charges would be laid and that he should proceed with the drugs' destruction. He remembers that some weeks later, he happened to run into the Complainant at the detachment. Cst. Akow was working out of a satellite police station at the time and only rarely visited the main office. The Complainant informed him that he had yet to dispose of the drugs. Cst. Akow was surprised to hear this and recalls advising the Complainant that if he did not know what procedure to follow, he should seek the advice of his trainer or another officer. The Complainant did not tell Cst. Akow at this time that he had been storing the marijuana in his duty locker. Cst. Akow only learned of this fact shortly before testifying at the Tribunal hearing. In his opinion, this form of storage was inappropriate. There were two designated sets of lockers at the police station where exhibits were secured temporarily pending further processing, and that is where the Complainant should have placed the seized substances. The Complainant should have been aware of these lockers, and if not, he should have asked his trainer or another officer for advice. [53] On the issue of the Complainant's evidence gathering skills, Cst. Haney remarked in the final Assessment Report that the Complainant's notes were still incomplete. Important observations were frequently not recorded in his notebook and significant details, such as dates of birth, phone numbers and times, were often lacking. [54] The Complainant's ability to deal with members of the public was also identified as problematic. Cst. Haney referred in the final Assessment Report to two incidents where the Complainant engaged in a shouting match with members of the public. His confrontational approach was unprofessional and not acceptable. [55] Cst. Haney also reiterated his concerns about the Complainant's decision-making skills, adding that they would likely improve as he upgraded his knowledge and application of law, policy and procedures. The coach encouraged the Complainant to seek out the advice of senior RCMP members and experts in order to further enhance these skills. Cst. Haney also noted that the Complainant needed to begin taking a common sense approach when dealing with situations. As an example, the coach highlighted an incident where the Complainant returned a recovered stolen vehicle to an individual without first verifying the person's identification and vehicle registration. The Complainant countered in his evidence that he knew the individual from before and had spoken to him in French before returning the vehicle. He had established with confidence that this person was in fact the car dealer who had reported the theft. The Complainant's attempts at explaining this to Cst. Haney were rebuked yet again. [56] Cst. Haney concluded in his Report that in general the Complainant's work ethic was suspect and required improvement. He tended to deflect criticisms that were intended for his benefit and he had the habit of comparing himself to other cadets being trained at Burnaby instead of focussing on what he needed in order to become successful. Nonetheless, Cst. Haney indicated that with a greater effort and a willingness to learn, the Complainant could succeed in the Field Training Program. He therefore recommended that the Complainant's training period be extended. The non-commissioned officer who was in charge of training at Burnaby, Cpl. Richard Cousins, testified that while in theory a recruit who does not pass his initial six-month RFT can be recommended for discharge, in his experience, the training period of all recruits is ordinarily extended in such circumstances. According to Cpl. Cousins, failing to satisfy all the criteria at the end of the initial period does not indicate an inability to succeed but rather that the individual needs more coaching and more development to meet the standards. [57] The Complainant took issue with the final Assessment Report prepared by Cst. Haney. He recalls that despite its somewhat optimistic conclusion, Cst. Haney told the Complainant several weeks before the Report's completion that it was by no means certain an extension would be recommended for him. He openly questioned whether the Complainant was destined to have a police career. These remarks had the obvious effect of further discouraging the Complainant, who had been making a tremendous effort to improve himself. [58] The Complainant was particularly upset at the assertions in the Report that he had not applied himself sufficiently and was unwilling to work hard. He claims that Cst. Haney often accused him during the RFT of being lazy and slow. Aside from being unfounded, the Complainant argues that these statements demonstrated an underlying racial prejudice associated with a negative stereotype of black persons as lazy and lethargic. The communication of these accusations by Cst. Haney to supervisors and other RCMP members served to irreversibly taint his reputation at the detachment. [59] Contrary to the findings of his trainer, the Complainant felt very comfortable by this point in his role as a police officer. He was at ease going on solo patrols and handling any form of call to which he had been exposed in the past. [60] He was again frustrated that none of the many positive or outstanding acts executed by him over the course of the previous two months were mentioned. For instance, although he was criticized for placing a suspect's replica gun in his office basket, the Complainant had at the same time taken the initiative to search the detainee's background, and uncovered that he was an illegal immigrant against whom a deportation order had been issued. As a result, the suspect was kept in detention and then handed over to the immigration authorities. [61] Another incident of good conduct that was not reported took place on April 16, 1997. While on rotation with another unit, the Complainant was heading to the courthouse with Constable C.L. Ramos in an unmarked police car. As they were travelling, the Complainant observed someone trying to break into a parked vehicle. They stopped and apprehended the suspect, who it turned out was in possession of stolen property and had a record of violence. Cst. Ramos drafted up a memo (known as a 1004 Performance Log) commending the Complainant for his enthusiasm and fine work ethic. Several supervisors endorsed the memo and praised him with remarks such as good work and excellent. [62] Two days later, on April 18, 1997, the Complainant was assigned to work with Constable R.S. Burns, on rotation with another unit, and was again riding as a passenger in an unmarked police car. He witnessed two persons running away from an apparent altercation with a third individual. The Complainant got out of the car and pursued both suspects on foot. After apprehending and securing the first, he continued the chase and caught the second suspect as well. Both of them were the object of an ongoing assault and kidnapping investigation. Cst. Burns later noted that the Complainant exhibited considerable enthusiasm in apprehending the individuals and that his decision to intervene was correct. This event was not mentioned in the Assessment Report but Cst. Haney testified that he was only made aware of the incident just prior to his testimony in the present case. [63] The Complainant points out that even his work within the broader community was omitted from the Report. For example, no mention was made of his having volunteered to present scenarios to students attending the 1997 Youth Academy, a project organized to acquaint young people with the RCMP. The officer in charge of the event later sent a letter to the Burnaby detachment expressing gratitude for the Complainant's contribution. [64] Cst. Haney disagrees with the intimation that the Complainant's successes during his training were ignored. To the contrary, the coach contends that they were incorporated in his general assessment. Ultimately, however, the objective of the Assessment Report and the Field Training Program as a whole was to establish whether the recruit was competent under all the designated criteria. The Field Coaching Program Training Standard, which served as an operational manual for RFTs, stipulated that in preparing Assessment Reports, field coaches were to only document observations of performances that were either in need of improvement or were superior. In the absence of any such mention, the recruit was assumed to be competent in all areas. Where something noticeably wrong was observed, the trainer was supposed to provide suggestions for remedial action in the report. In addition, Cst. Haney added that his role as a trainer was to provide the Complainant with an accurate, open and honest impression of the level of his performance. In Cst. Haney's opinion, to emphasize the achievements at the cost of minimizing the deficiencies would have been dishonest and would have negatively impacted on the Complainant's training. [65] Under the Trainee's Comments section of the final Assessment Report, the Complainant did not express any open objection, having resigned himself to the situation. He noted that he had been working very hard over the previous two months but understood that he still needed to work more in certain areas. He accepted the extension to his RFT and declared that he would prove his competence in all areas. E. First Extension of Field Training - Month #1 [66] Cpl. Cousins, who headed the training program, accepted Cst. Haney's recommendation that the Complainant's training period be extended for three months. In an effort to start things anew, it was decided that he would be moved into another district of the city to work with new peers and supervisors, and a new trainer. He would still be working out of the detachment's main building. For his part, the Complainant asked his team supervisor, Sgt. Watts, if he could be assigned a bilingual coach this time. Cst. Haney did not speak French, and the Complainant felt that in some instances he may have been better understood by the coach had he been able to express himself in his first language. [67] Sgt. Watts designated Cst. Dave Carr, whom he considered very competent and well-respected by his peers, as the trainer for the extension period. Cst. Carr held an official language (ie. bilingual) position. The Complainant submits however that in fact, Cst. Carr could barely speak a sentence in French. He testified that at no time was he able to express himself and get his point across to the new trainer in French, particularly in decision-making situations. On the other hand, Cst. Carr gave evidence that he deliberately spoke to the Complainant almost exclusively in English since the latter's English language skills were still in need of improvement. [68] The extension of the Complainant's field training began on June 13, 1997. He met with Cst. Carr and Corporal Lyle Avery, who became his new supervisor. They discussed his problem areas and set out a list of corrective actions. These included an undertaking by the Complainant to study the writing skills and style of other members, to ride along in patrol cars with other officers during his off-hours, and to implement Cst. Carr's system of personal organization. It was agreed that the lines of communication between the three of them would be open at all times. Cpl. Avery underscored the point that both he and Cst. Carr wanted the Complainant to succeed. [69] The Complainant's reaction to this action plan was mixed. He was personally upset that the RCMP had not seen fit to pass him on his field training, but outwardly he maintained a positive and open attitude toward these guidelines. After all, his greatest desire was to succeed. [70] The Complainant testified that Cst. Carr's training style was in marked contrast to that of Cst. Haney in several respects. Cst. Carr permitted him to use the available computers to draft his documents, which allowed him to write up his reports much more quickly. In addition, Cst. Carr's tone was very professional and he did not yell at the Complainant. He did not address him using either of the allegedly racial epithets used by his former trainer (OBO and Kirby Puckett Ass). Cst. Carr testified that he had previously heard the story regarding the Complainant's mistaken use of the term OBO but he had not heard of the term Kirby Puckett Ass until he saw the Complainant and Cst. Albert exchange messages on the patrol car's mobile computer one day. Cst. Albert used the term to address the Complainant, who in turn used a nickname to address Cst. Albert in reply. The Complainant explained to Cst. Carr that Kirby Puckett Ass was a nickname that had been given to him once. He did not express any displeasure in its use. [71] Cst. Carr did nonetheless carry over some of Cst. Haney's training techniques. For instance, he relied on a logbook to record events on a daily basis. The Complainant claims that even the slightest error on his part ended up being documented in Cst. Carr's book. Cst. Carr also kept track of how long it took the Complainant to complete his reports. Each time he would make a mistake, Cst. Carr would openly question how this could happen to someone with more than six months' experience in the field. The Complainant's attempts to blame his deficiencies on what he perceived as the poor level of training he had received from Cst. Haney were dismissed by Cst. Carr. This had a chilling effect on the Complainant, who became reluctant to ask questions and learn how to execute a given task, which further aggravated the problem. [72] A conversation that he had with Cst. Carr and Cpl. Avery several weeks into the extension only added to the frustration he was feeling. Both of the more senior members tried to convince him to consider resigning and take up another profession. Their comments were very upsetting. He thought their opinions of him were unfounded and unfair. He could not understand why he was given an extension on his RFT if they were so certain that he would not pass. How could they claim that he was starting anew, when they had already prejudged him? He felt crushed. [73] Cst. Carr disagrees. He and Cpl. Avery wanted to speak to the Complainant about his progress to that point. It was clear that he continued to have difficulties in his training and they felt it appropriate to propose that he consider a career other than police work. Cst. Carr believed it to be in the best interest of a trainee to be open and frank with him. [74] The Complainant's alleged ongoing deficiencies were identified in the first Assessment Report of the extension period, prepared at the one-month point and dated August 3, 1997. Cst. Carr concluded that the Complainant still needed improvement in six of the seven areas where he had been found deficient in Cst. Haney's final Report. He had upgraded himself to the level of competency in the seventh area, incident and risk management. [75] Cst. Carr testified that the Complainant had actually demonstrated competence in several of the categories for which a need for improvement had been identified, such as in his knowledge of law, policy and procedure and his records management. But this improvement had only just occurred in the days and weeks prior to the filing of the Report and Cst. Carr felt it inappropriate to upgrade the Complainant until a level of consistency over a longer period had been shown. [76] The coach felt that the Complainant remained clearly deficient in several of the other fields. Communication skills remained a challenge for the Complainant. His continued difficulty with written English made paperwork a formidable task for him. But Cst. Carr noted that the Complainant even had difficulties with the format of reports and that he was unsure about what information needed to be included. These problems resulted in his taking an inordinate amount of time to complete a report, often necessitating two or three drafts before finalization. Cst. Carr remarked that because paperwork was so cumbersome for the Complainant, he had a propensity to avoid this task. [77] The Complainant questions the validity of this assessment. He points to the evidence of Constable Dana Lillies, who replaced Cst. Carr as coach for a total of ten work shifts in July 1997. She noted in the logbook that the Complainant's paperwork was satisfactory, with the wording only in need of some fine tuning in the odd sentence. She did not identify any problem in the content of the reports. Overall, she did not observe any major problem in his performance, although she acknowledges that all the calls that they attended were relatively routine in nature. In one case, the Complainant reacted quickly and chased down on foot a detained suspect who had managed to run away from the patrol car. [78] Cst. Carr also noted that the Complainant demonstrated a lack of common sense and made decisions that defied logic. For instance, while at a scene where someone had died, a so-called sudden death call, he opted to tape a statement from a witness with the deceased's body still present, in an environment with considerable noise and commotion. The Complainant was later advised that a written statement would have been more appropriate in such circumstances. A few weeks later, the Complainant attended the scene of a purse snatching. He opted yet again to take a taped statement from the victim, who was very upset, under a noisy Skytrain commuter train platform, with people streaming by. A short written statement would have been more suitable. The Complainant asserts that this criticism was unfair. On account of his being constantly timed in the execution of his tasks, the Complainant had become accustomed to taping statements, which is a quicker process than writing them down. [79] Cst. Carr also identified a difficulty with the Complainant's ability to make appropriate decisions on whether or not to charge someone. In one incident, he opted to not charge a young offender without having first conducted a background check. It turned out that the individual had been given a warning before, a factor to consider before deciding whether to charge a suspect. In another case, the Complainant proceeded immediately with charges in a case where the assault was minor and where the public interest clearly called for informal resolution between the parties involved. Cst. Carr stated that he and the Complainant had put together a strategy to develop the latter's common sense and logic in handling situations, which would be implemented over the remaining two months in the extension period. Still and all, despite his concerns, the coach did recognize in the report that the Complainant had been making some good decisions of late. [80] With respect to crime scene investigation and evidence gathering skills, it was noted that the Complainant had overcome the problems with his notebook. But Cst. Carr was concerned that the Complainant often appeared content to let other members take over at the scene of an incident rather than deal with the matter himself. [81] In his general conclusions, Cst. Carr mentioned his concurrence with Cst. Haney's finding that the Complainant deflected responsibility from himself. He frequently blamed Cst. Haney for the difficulties that he was continuing to experience. Cst. Carr mentioned in his Report that whenever the Complainant's inability to use common sense and make logical decisions was raised, he appeared unable to grasp the concept and invariably placed the blame on someone else who had told him to do things that way. [82] As with the previous Assessment Reports, the Complainant provided his own remarks on the form, after having viewed the document. He wrote that he had made enormous efforts since the start of his RFT extension and that he would keep on doing his best until the end. F. First Extension of Field Training - Month #2 [83] Cst. Carr acknowledged in the next Assessment Report, dated August 31, 1997, that the Complainant had indeed stepped up his efforts during the second month of his extension. It was noted that the Complainant rode along with other officers during his days off. One of the RCMP members with whom he rode was Cst. Luc Montmarquette, who later wrote a 1004 Performance Log documenting his observations. He found the Complainant to have handled his calls in a professional manner without any problems and to have displayed good judgment in dealing with victims. Cst. Montmarquette gave evidence, however, that they only responded to minor calls during their shifts together. The circumstances therefore did not permit him to assess whether the Complainant possessed all of the qualities required of a police officer. [84] The Complainant also asked to ride with another officer, Cst. Randy Marx, for one eight-hour shift. In the 1004 Performance Log that Cst. Marx completed thereafter, he noted that the Complainant had led the investigation on one assault call and that he acted in a very professional manner. Cst. Marx did identify a bit of a language barrier that affected conversations and report-writing, but he was confident these difficulties would be smoothed over in time. Overall, he felt that the Complainant was performing his duties at an expected level. Cst. Marx said that he would have no hesitation working with him in the future. [85] Interestingly, however, Cst. Marx prepared a supplemental 1004 Performance Log five days later in which he seemed to downplay some of the positive comments in his earlier memo. He underscored the fact that his evaluation was made based only upon one shift and that he could therefore not provide a comprehensive assessment of the Complainant's performance. Cst. Marx recognized in the Performance Log that the Complainant may have been feeling that he was being poorly assessed by his trainers, but he also added that had he worked with the trainee for a month or two, it is possible that he would have reached the same conclusion as they had. Cst. Marx testified that after preparing the first 1004 Performance Log, he had learned of the difficulties that the Complainant had been having in completing his RFT. He then realized that his first report could have been misinterpreted and felt it important to clarify the exact parameters of what he had written. Cpl. Avery faintly recalls having spoken to Cst. Marx about the first Performance Log and telling Cst. Marx that it would be appropriate to only document actual observations and refrain from making additional overly broad statements without having had the benefit of working consistently with the trainee. [86] The Assessment Report recorded several improvements from the previous assessment. The Complainant was now considered competent in the areas of records management as well as knowledge and application of law, policy and procedure. However, he remained in need of improvement under three of the criteria. [87] Cst. Carr continued to find the Complainant's communication skills deficient. On account of an ongoing problem with his written English, preparing reports remained a cumbersome task for the Complainant. Two drafts were usually necessary to produce an acceptable report, the initial version often requiring proofreading by someone else. To help the Complainant improve his report writing skills, Cst. Carr had begun providing him with hypothetical scenarios on audiotape. The Complainant would listen to the tapes and practice writing up reports to Crown Counsel thereafter. The reports were then proofread and corrected by the trainer. In addition, the Complainant registered himself to take a course in effective writing offered by the RCMP. In this regard, Cst. Carr expressed some disappointment that since arriving in Burnaby, the Complainant had not sought out any other formal training in English. [88] The Complainant takes issue with this last remark and its implication that he had not done anything to improve his written English. In January 1997, he contacted E Division (British Columbia) headquarters in Vancouver for advice on the availability of English language training in the region. He was registered in the course to which he was referred at Capicollo College but upon receiving the course manual, he realized that the grammar instruction was insufficient. He therefore requested approval to take a more appropriate course being offered by correspondence by the Université du Québec à Montréal. The request was denied, as it was felt that training from within British Columbia should be favoured. Meanwhile, he registered himself in the RCMP's course on effective writing on his own initiative. None of his supervisors had ever informed him of the program's existence. The Complainant happened to learn of it from another officer, Cst. Albert, who had also taken the course. [89] The Complainant was also very upset with a comment addressed to him in this regard by his supervisor, Corporal Lyle Avery. When asked why his report-writing was taking so long, the Complainant explained that he was translating from French to English and then correcting spelling mistakes. Cpl. Avery retorted that his child was studying French at school and it was not taking him that long to do his homework. Cpl. Avery added that the delay could not have been due to the language barrier, but rather due to the Complainant's inability to draft reports. The Complainant believed he was misjudged. He felt humiliation at being compared to a schoolchild. [90] With respect to the Complainant's crime scene investigation and evidence gathering skills, Cst. Carr maintained that the Complainant had still not achieved the level of competence. The coach acknowledged that there had been improvement in areas such as the taking of statements and the earnestness with which he took calls. Yet Cst. Carr also identified several instances where the Complainant seemed unaware of the appropriate procedure to follow despite having been in similar situations numerous times before. [91] Aside from the weakness in report-writing, the Complainant's greatest problems were reportedly in the area of decision-making. Cst. Carr observed that in reaching decisions he tended to think in a linear fashion and had difficulty perceiving the big picture, which encompasses intangibles such as the public interest. Cst. Carr provided the Complainant with additional scenarios on audiotape for him to practice his decision-making skills. After listening to the facts of a case, the Complainant would determine whether or not to charge the suspect. Cst. Carr observed that as a result of these exercises, the Complainant had begun grasping the concept of taking the public interest into account. [92] Overall, Cst. Carr found that the Complainant had made progress in the previous month and that he had been working hard at improving his areas of weakness. Cpl. Avery, as supervisor to both Cst. Carr and the Complainant, added his comments to the Report. He highlighted the fact that the Complainant had to his credit achieved improved performance to a competent level in some areas that previously needed improvement. Cpl. Avery recognized the Complainant's continuing efforts to achieve competency in the three remaining categories and assured him that we will continue to provide all possible support. G. First Extension of Field Training - Month #3 [93] By September 30, 1997, when the third and final Assessment Report was issued, Cst. Carr had concluded that the Complainant had achieved the level of competence in the areas of communication skills, crime scene investigation, and evidence gathering. However, the Complainant's decision-making skills were still in need of improvement. [94] Cst. Carr noted that when he first began training the Complainant, this area was of particular concern. Initially, the issue related to his inability to decide whether or not to charge someone. Through practice and the use of scenarios, the Complainant improved and no further problems were noted. But Cst. Carr felt that the Complainant continued to have difficulty making decisions that are basic and fundamental to police work. He was still not looking at the big picture. He appeared to get excited and rush into decisions without considering what the consequences will be. Both Cst. Carr and Cst. Albert, who had trained the Complainant for a number of shifts in Cst. Carr's absence, had observed this problem and had advised him to slow down and think through his decisions before acting upon them. [95] Cst. Carr gave some specific examples in his Report of the errors in the Complainant's decision-making. While riding with Cst. Albert, the Complainant arrested a 15-year-old shoplifter. He opted to return her to the group home where she resided. Upon arriving there, he intended to just let her out of the patrol car and drive off. By not escorting her to the door and handing her over to the group home's staff, he ran a risk that she would run away from the home as soon as he was gone. [96] Another incident related to a call regarding a woman with bullet wounds to her chest, an apparent suicide attempt. Several officers were in attendance. Constable Peter Maw was supervising the operation. While Cst. Carr and another member performed first aid on the injured person, the Complainant was instructed to keep an eye on a man who was found at the scene, a potential suspect. A few minutes later, two GIS investigators arrived. They were initially unable to locate and interview the suspect. He was eventually found alone on a balcony, away from the crime scene, smoking a cigarette. The Complainant had apparently stepped outside to retrieve a tape recorder from a police vehicle and left the suspect unattended. [97] One of the investigators, Constable Theodore Van Overbeek, later complained about the Complainant's actions to Cpl. Avery. The Complainant denied any wrongdoing, contending that Cst. Maw, a more senior member, had instructed him to get the tape recorder. He understood that Cst. Maw would watch the suspect in the meantime. Cst. Maw disputed this assertion in his testimony. Interestingly, Cst. Van Overbeek later issued a 1004 Performance Log commending the Complainant on the manner in which he had gathered the evidence at this incident. Cst. Van Overbeek testified that he had prepared the memo at the request of Cst. Carr, who had explained that the Complainant was in need of some positive reinforcement. [98] Cst. Carr referred to another call in the Assessment Report as indicative of the Complainant's deficiencies in making decisions. They were dispatched to deal with a dispute between two teenaged sisters who had been fighting quite violently. Their parents were not present. After assessing the situation, the Complainant came to the decision that he would arrest both of them, so as to keep them apart. Cst. Carr criticized him for lacking forethought as to what he would do with two young offenders whom he had arrested without any intention of charging. It was not in the public interest that they be detained. A short time later, the sisters' mother arrived and the Complainant then decided to leave the matter with her. The Complainant agrees that his initial decision was not the best but he had never encountered a similar situation in the past. When he asked Cst. Carr for advice, the trainer insisted that he make a decision immediately. [99] Cst. Carr pointed out that whenever he spoke to the Complainant about his difficulty with decision-making, the recruit did not appear to believe there was a problem. According to Cst. Carr, the Complainant replied that any difficulties he was experiencing related to the pressure being placed on him and the problems that had existed between him and his first trainer, Cst. Haney. Cst. Carr dismissed this claim, stating that having worked with the Complainant for three and a half months, he had witnessed nothing to support the assertion. Cst. Carr added that difficulties between two individuals cannot affect one's ability to make sound decisions. Cst. Carr completed his Report by noting that the Complainant was well-liked by his co-workers, worked well with others, and was an enthusiastic member. [100] Cpl. Avery attached his own comments to those of Cst. Carr. He concurred with the trainer's findings. He noted that the problem for the Complainant lay in his being unable to function under pressure within a reasonable time frame as an integral part of a team with constant demands to action tasks at a high level of quality, while still being able to get on to the next call without constant supervision. Cpl. Avery added that in his opinion, the Complainant had the benefit of being trained by two excellent coaches. [101] After receiving the final Assessment Report, the Complainant returned home to Montreal for a couple of weeks. He was crushed and dejected at the near certainty that he would be dismissed for having failed to satisfy just one of the 28 criteria of the RFT. In the preceding months, the Complainant had been speaking to Cpl. Les Allen about the difficulties he had been experiencing. Cpl. Allen was involved with the Division Staff Relations Representative (DSRR) Program as a sub-representative responsible for the Burnaby detachment. Since RCMP members were not unionized, the DSRR Program had been established to represent their collective and individual interests within the RCMP. As it became obvious towards the end of the extension period that the Complainant may not satisfy all of the criteria of his RFT, Cpl. Allen began making it known to senior management that he would be requesting a second extension of the Complainant's RFT. [102] The decision on whether to grant a second extension to the Complainant was to be handled by Cpl. Cousins, Inspector (Insp.) Dennis Schlecker, who was the officer in charge of operations at the Burnaby Detachment, and Staff-Sergeant (Staff-Sgt.) Colin Abel, who was the Non-commissioned Officer in Charge of the Field Coaching Program for E Division. His role was to supervise the training being offered by all of the Division's detachments. While the Complainant was away in Montreal, several meetings were conducted to discuss his future with the RCMP. Sgt. Watts and Cst. Carr felt that the Complainant would be unable to overcome his deficiency regarding a crucial component of police work, the ability to make sound decisions. They recommended that the Complainant's training not be extended. [103] Cpl. Cousins was also reluctant to support a further extension, but he continued to believe that the Complainant had the potential to be a fully competent member. He testified that he was persuaded in this opinion by the representations of Cpl. Allen. Cpl. Cousins' recommendation for an extension of two months was given only on the condition that the Complainant accept the fact that he was lacking in the area of decision-making and that he would have to make a concerted effort to improve in that category. Cpl. Cousins felt that one of the reasons that the trainee had not managed to achieve full competency was his tendency to deflect responsibility for his shortcomings, and to meet any attempt by his trainers to correct them with resentment. [104] Insp. Schlecker adopted Cpl. Cousins' recommendations. The Complainant's RFT was extended for a period that Insp. Schlecker curiously described as no more than and no less than two (2) months in his memorandum to the officer in charge of the detachment. The assessment during the extension would be focussed on the Complainant's decision-making. A new field coach would be assigned to him with the understanding that he or she demonstrate and document with examples what had been done to assist the Complainant and what the results of this assistance had been. If the Complainant did not reach an acceptable level in decision-making, a recommendation for discharge would automatically follow. [105] Both Insp. Schlecker and Cpl. Cousins testified that this was the only occasion in their careers, during which they were involved in the training of hundreds of recruits, that they had come across a second extension of an RFT. Staff-Sgt. Abel gave evidence that the Field Coaching Program does not even formally provide for a second extension. H. Second Extension of Field Training - Weeks 1 & 2 [106] While in Montreal, the Complainant prepared his comments with respect to the final Assessment Report of September 30, 1997. The remarks were typed and were 14 pages in length. He took the opportunity to express his view on all of the previous Assessment Reports. He provided his perspective on some of the incidents for which he had been criticized. He pointed out that the Reports often failed to make mention of the positive aspects of his performance. In discussing the extension period, he mentioned that Cst. Carr was an excellent trainer. The Complainant added that Cst. Carr spent a lot of his own time to help him succeed, was patient with him and treated him fairly to the end. The Complainant did not provide any appraisal, positive or negative, about Cst. Haney. At no point in his remarks did the Complainant ever allege or suggest that either Cst. Haney or Cst. Carr treated him in a discriminatory fashion. The Complainant concluded his comments by noting that we all learn from our mistakes, and requested an additional training extension if it is the opinion of my superiors that decision-making skill [sic] still needs improvement. [107] The Complainant handed in his comments upon his return to the detachment in mid-October 1997. He had not been informed of the exchanges that his superiors had been having about his RFT. He had assumed that he would be dismissed. He only learned that his training had been extended when he arrived at the detachment on October 16, 1997, looked in his basket, and found a copy of Insp. Schlecker's memorandum that set out the conditions of the extension. [108] The Complainant was told that he would be working with an entirely new team of police officers and serving a different district in one of the busier areas of Burnaby. Sergeant Murray Ross, who was the Watch Commander for the team, was asked to designate a trainer for the Complainant. In consultation with the non-commissioned officer who would be in charge of the Complainant's patrol, Cpl. Larry Johnson, Sgt. Ross selected Cst. Dwayne McDonald as the new coach. Sgt. Ross described Cst. McDonald in his evidence as an excellent policeman who was very mature despite being a relatively junior member at the time. Cst. McDonald had trained other RCMP officers and, in his previous employment as a customs inspector, he had participated in the ongoing training of new customs officers. [109] On October 21, 1997, Cst. McDonald and Cpl. Johnson met with the Complainant to discuss the format that this training would take. It was agreed by the supervisors, and accepted by the Complainant, that he would ride with the coach for the entire duration of the extension. He was to be responsible for the handling, investigation and direction of all files, and Cst. McDonald would be available for assistance, only at the Complainant's request. Cst. McDonald was to assess the trainee solely with respect to his decision-making abilities and his activity would be documented on a weekly basis through written reports. The Complainant had indicated his concern that his experience with the previous trainers would be held against him, but Cst. McDonald assured him that they would be making a fresh start together. Aside from having reviewed the Complainant's file, including the previous Assessment Reports, Cst. McDonald did not know anything about the Complainant, and was only casually acquainted with one of the Complainant's previous coaches, Cst. Carr. Cst. McDonald wrote in a follow-up memo that he was confident that this would work in the Complainant's favour, as there would not exist any bias for or against him. [110] Cst. McDonald testified that the Complainant's mood at this meeting was energetic and that he demonstrated an eagerness to get on with the training. They went out on patrol together after the meeting and got along well, with a lot of laughter. The Complainant spoke of how hard Cst. Haney had been on him, and in contrast, how good a trainer Cst. Carr had been. The Complainant's attitude in the first two weeks was positive and well-motivated. Cst. McDonald described the calls that were handled over these blocks of work shifts as routine, but noted nonetheless that the Complainant had performed well. He appeared to be handling the stress of the job despite the obvious pressure he was working under. [111] The Complainant confirmed in his evidence that he was pleased with his first two weeks of training under the tutorship of Cst. McDonald. His report-writing was no longer being criticized nor were his activities being clocked. He still felt stressed about the situation, particularly since the coach tended to document the slightest errors in his performance, even in areas where he had already been deemed competent. He nevertheless viewed Cst. McDonald's first two weekly assessments as positive overall, and felt hopeful. For his part, Cst. McDonald was also feeling cautiously optimistic at this point, although he believed it was still too early to draw any final conclusions. The following week would prove to be an entirely different story. I. Second Extension of Field Training - Week 3 [112] On November 6, 1997, the Complainant and Cst. McDonald were dispatched to an apartment block where a man had allegedly uttered death threats. Cst. St-Fleur, who was also a recruit at the time, and his trainer, Cst. Marx, were also on patrol in the area, and were first to arrive on the scene. They had spoken to the victim by the time the others arrived. Cst. Marx suggested this incident would provide a good opportunity for both trainers to assess their trainees by letting them handle the inquiries and arrest if needed. By now, Cpl. Johnson, their supervisor, had also shown up. He was interested in observing how the Complainant would perform. [113] Before allowing the recruits to proceed, Cst. McDonald pointed out that the Complainant would be in charge of the call because it had originally been dispatched to him. The Complainant understood this to mean that he had the authority to give orders to the other officers on the scene. He informed them of his plan for the operation. Based on the information already collected, there appeared to be grounds for an arrest. The Complainant instructed Cst. St-Fleur to get a statement from the victim. In the meantime, the Complainant would arrest the suspect, with the assistance of either Cst. McDonald or Cst. Marx. [114] According to the Complainant, his plan was inexplicably rejected by the senior officers present. He was told that he could not assign Cst. St-Fleur to take the statement nor to arrest the suspect. The Complainant found this confusing as he understood that they were to work the file together. He therefore inquired of the trainers why they were refusing his approach. This discussion escalated into an argument. He claims that Cst. McDonald flew into a rage, grasped the Complainant's arm and pointed a finger to his chest. He yelled to the Complainant that he was only a recruit and he should do exactly as he was told. Cst. Marx and Cst. St-Fleur then left, and the Complainant completed the file on his own. [115] Cst. Marx, Cst. McDonald and Cpl. Johnston recorded their initial observations about this incident in three separate 1004 Performance Logs. Their recollections differ from the Complainant's. They claim that it was made clear from the outset that the Complainant would be in charge of the file. Cst. McDonald testified that the direction was typical of what the Complainant would have received in his training to date. It meant that he would be responsible for the entirety of the investigation including all paperwork and follow-up enquiries. The only difference here was that Cst. St-Fleur was assigned to assist him if needed. Cst. Marx referred to Cst. St-Fleur's role as a back-up to the Complainant. All four of the other officers, including Cst. St-Fleur, testified that they were surprised to see the Complainant begin to give orders, particularly to two senior officers, when he had been specifically told to handle the file himself and that the three senior members would observe. [116] Moreover, when the Complainant was called back and told specifically how they wanted him to conduct the investigation, he became argumentative and refused to listen. Cpl. Johnson described his attitude as defensive, stubborn and arrogant. To make things worse, the Complainant adopted this tone while in the main entranceway of the apartment building. Several members of the public were watching. Cst. Marx noted that the Complainant appeared to lack the ability to understand what the others were trying to convey to him and make a decision. He was unable to follow a simple direction in a basic file. Cst. McDonald described the Complainant's conduct as unacceptable and unprofessional. He was particularly concerned by the fact that the Complainant's previous trainers had previously documented and addressed with him this type of behaviour. Cst. St-Fleur did not write a report at the time but testified that he had no idea why his fellow recruit was unable to understand the instructions being given. To him, the directions were clear. Cst. St-Fleur testified that he even tried to restate and clarify the instructions in French at one point, but the Complainant refused to listen. [117] The incident caused Cpl. Johnson to have serious reservations about the Complainant's competence. The Complainant appeared to him to be at a loss as to what action to take, and even when given directions, he chose not to follow. Cpl. Johnson described the Complainant's performance in this matter as substandard and indicated that his lack of judgment and decision-making skills were of grave concern. Cpl. Johnson found the performance so disturbing that he had no confidence in the Complainant's ability to get the job done without someone standing over his shoulder. Cpl. Johnson concluded, in his Performance Log, that if the Complainant's substandard work continued, it would be questionable whether his employment with the RCMP would continue. [118] The Complainant was presented with copies of the negative Performance Logs at the time. He expressed outrage during his testimony that these senior RCMP members opted to make three distinct negative reports about this one incident, an excessive over-reaction in his opinion. Indeed, of the numerous persons acquainted with the RCMP in one way or another who testified at the hearing, most did not recall ever having witnessed a member receive three negative 1004 Performance Logs in respect of one incident. The Complainant feels that one negative report would have been sufficient. He submits that three reports were drafted in order to [TRANSLATION] crush him psychologically. [119] All three of the senior officers testified that they each independently decided to prepare a negative 1004 Performance Log about the incident. They did not consult with one another before or during the preparation of their reports. Cst. McDonald claims that considering the presence of three relatively senior officers observing a junior member's conduct in a training context, and the severity of the incident, it would be common for each of them to have wanted to record their observations in writing. He denies having raised his voice or jabbed his finger into the Complainant's chest. [120] The Complainant later apologized to the three members for his behaviour, but he testified that his only motivation for doing so was to preserve a good rapport with his trainer and supervisor. He maintains that he was not wrong but that the problem developed on account of miscommunication. [121] The Complainant received another negative 1004 Performance Log before the close of that week. It related to a series of events that commenced on November 5, 1997, the day before the death threats incident referred to above. The Complainant had recovered a pick-up truck that had been stolen from an airport parking lot. Numerous gardening tools were found in the vehicle, including a lawnmower, generators and power equipment. The owner of the tools was unknown. On the instructions of Cst. McDonald, the Complainant prepared an advisory of the recovered goods to be distributed through a national police bank, known as CPIC. Because of the national scope of such notices, a supervisor had to sign off on its issuance. The Complainant presented it for approval to Cpl. Wesley Waters, who was the road supervisor for the next shift. The Complainant also asked Cpl. Waters to place the notice on the briefing board, which in effect meant that all the incoming officers reporting for duty would be told to keep an eye out for any information regarding a theft of these goods. [122] Cpl. Waters looked at the list of items recovered and saw that many of them were manufactured by Honda. In his experience, the manufacturer kept track of the owners of this type of equipment through serial numbers and could easily provide the Complainant with this information. It was therefore not necessary to issue an advisory or a briefing board report in order to find out who the owner of the stolen goods was. Cpl. Waters looked up Honda Canada's number in the telephone book and gave it to the Complainant, advising him to call the company the following day. However, instead of placing the call, the Complainant went to another supervisor and asked him to brief the other teams, ignoring Cpl. Waters' previous instructions. [123] On November 11, 1997, Cpl. Waters ran into the Complainant, who had come into the detachment while on his day off. He asked the recruit how he had made out with his call to Honda. The Complainant responded that he had not managed to call them yet, with the explanation that he was in court all day on November 6th. In point of fact, he was not. The Complainant informed Cpl. Waters that he had in any event sent out the CPIC nation-wide advisory about the goods. Cpl. Waters was upset with the Complainant, reiterating to him that all he needed to have done was call Honda. Cpl. Waters was particularly concerned that the victim of the theft, who was likely a landscaper, was without the use of his tools for so many days and was probably losing revenue on account of the delay. The following day, Cpl. Waters called the Honda customer service department himself. Within a couple of minutes, he had the name and address of the owner. [124] Cpl. Waters criticized the Complainant in a 1004 Performance Log for having chosen to ignore the advice of a senior and more experienced investigator, thereby causing a costly delay in the return of the goods and an unnecessary investigation (ie. the CPIC national advisory). [125] For his part, the Complainant claims that when he first approached Cpl. Waters, it was primarily to have him check his exhibit report for spelling mistakes. Besides, contends the Complainant, there was nothing wrong in his asking the other road supervisor to brief the next shift about the recovered goods, it was a common practice. On the following day, November 6th, he responded to the death threats call, during which the dispute between him and the other senior officers developed. These circumstances prevented him from contacting Honda. The next day, November 7th, which was a Friday, he was on a night shift and the manufacturer's offices were closed when he tried to place a call in the evening. He was off-shift thereafter but came in to the station on his third day off, the 11th, with the intention of calling Honda. [126] It is worth noting, however, that the November 6th death threats call came in at the end of that day's shift, after 5 PM. The Respondent contends that the Complainant had ample opportunity to contact Honda earlier that day but deliberately chose not to comply with Cpl. Waters' instructions. [127] The Complainant points out that in the end, the property was returned to the owner on November 13th, barely more than a week after its theft. He argues that this is very quick compared to the months that it ordinarily takes to get stolen goods to their rightful owners. He also notes that the landscaper was so pleased to learn that his tools had been recovered that he offered a gift to the Complainant in gratitude. Cpl. Waters sees no relevance in this latter point, since the owner was simply not aware that he could have had his property returned to him even quicker, had the Complainant followed his original instructions. [128] In his summary of that week's activities, Cst. McDonald stated that the Complainant's RFT had been less than positive. He acknowledged that the trainee was under a lot of pressure, which undoubtedly caused him some anxiety. Cst. McDonald added that he did not wish to only dwell on the negatives, so he cited a couple of incidents where the Complainant had acted appropriately and performed very well. J. Second Extension of Field Training - Week 4 [129] The next block of work shifts ran from November 13-19, 1997. Cst. McDonald referred to the week as uneventful, with fairly routine calls involving minimal investigation or follow-up. Yet Cst. McDonald documented three incidents in which the Complainant was said to have displayed poor decision-making skills. [130] The first related to a call that was minor in nature. Someone had reported seeing two men leaving an apartment with a television and loading it into a car. The Complainant drove to the scene and unwisely parked in the middle of a bus stop when there were plenty of other parking spaces available. Cst. McDonald had to remind the Complainant to park elsewhere. Then, a few moments later, someone was seen leaving the apartment. The Complainant approached him and asked if he lived there. The individual said no and the Complainant was about to let him drive away in his car. Cst. McDonald intervened and reminded the Complainant to get the person's identity and a better explanation for why he was there. [131] After obtaining this information from the man, the Complainant prepared to get back in his patrol car and leave the scene. Cst. McDonald had to step in once again and ask him what remained to be done. The Complainant seemed at a loss, so the coach had to specifically prompt him to locate and speak to the actual occupants of the apartment. This was eventually done and it was determined that they were simply in the process of moving out of their apartment. Cst. McDonald's criticism rested in the Complainant's lack of common sense in conducting this most basic of police work. The instructions given should not have been necessary. [132] The second documented negative incident of this week related to an arrest warrant against a young offender that the Complainant and Cst. McDonald executed in Vancouver. The trainer noted that this constituted basic police work, yet he had to prompt the Complainant to notify the Vancouver police force of their activity within that city's limits, and to alert their own dispatcher back in Burnaby once they had arrived. The latter procedure is referred to as a timer and is used in situations that pose some risk. If the dispatcher does not hear news from the officers within a designated period, a call will come in on the radio asking them if they are alright. [133] Once they arrived at the young offender's residence, the Complainant arrested the 14-year-old, but Cst. McDonald had to remind him to inform the youth's mother of what was happening. Cst. McDonald noted in his report that these are common sense steps that form part of standard operating procedure and they should be taken without thought by a member with twelve months' service. [134] In his testimony, the Complainant expressed frustration at the criticism. The mother did not speak English so he had asked the young offender's 10-year-old sibling to explain the situation to her. Even the young offender confirmed that his mother understood. Cst. McDonald refused to accept the Complainant's explanation that he had already given the information to the mother. [135] The final documented incident for the week concerned a call that came from a taxi driver complaining that a 14-year-old female customer had refused to pay her fare and threatened him with a knife. The Complainant and Cst. McDonald were dispatched as the primary vehicle to the scene but Cst. Marx, Cst. St-Fleur and Cpl. Johnson also responded. As primary responder, the Complainant was tasked with handling the file. He spoke to the driver for a couple of minutes about what had taken place. He then went to the young woman's residence, into which she had run after leaving the cab. Cst. McDonald claims that the Complainant immediately arrested her, brought her outside, handcuffed her and placed her in the back of his police vehicle. [136] Cst. McDonald decided to constructively challenge the Complainant about the decision that he had just made. He was particularly concerned that the recruit had acted after only having heard one side of the story. He asked the Complainant if he had obtained the young woman's version of the facts before arresting her. The Complainant replied that he had not, so he returned to the car and spoke to her to confirm whether an offence had occurred. It turned out her version differed from the driver's. She had told the cabbie she was going into her house to make arrangements to repay the taxi company, since she had no money with her. He did not want her to leave without paying so he chased her to the house and began shouting and banging on the door. She was frightened and grabbed a kitchen knife, which she displayed through the window to scare him away. As Cst. St-Fleur recounted in his testimony, she had no intention of hurting the driver. She just wanted him to leave. She showed him the knife through the window to deter him and defend herself. [137] The Complainant then returned to Cst. McDonald and relayed the young woman's version of the events. Cst. McDonald challenged him again as to what decision he should make now. The Complainant did not respond, so Cpl. Johnson stepped in to ask him again what his decision would be. Cst. McDonald testified that the Complainant appeared to be unsure. It was only once the others suggested to him that the cabbie had not been forthcoming with all of the facts and that no offence had actually occurred, that the Complainant responded by releasing the teenager from custody. Cst. McDonald testified that this decision was ultimately the right course of action to follow, but his concern was that the Complainant was unable to make it on his own, without any prompting or constructive challenges. Cst. McDonald is not persuaded that the Complainant would have made the right choice had he been on his own. [138] The Complainant, on the other hand, disputes Cst. McDonald's presentation of the events. In their initial conversation, the driver told the Complainant that the female suspect had placed a knife against his throat and threatened him. The Complainant felt he had enough information to proceed with an arrest. He spoke to the suspect and determined she was lying. He then arrested her for observation and so as to investigate. [139] While he was dealing with the teenager, the other officers had the benefit of speaking to the cabbie and realizing that he had misrepresented some of the facts. Thus, they had information that the Complainant lacked and were in a better position to know that an arrest was not warranted. The Complainant claims that when he rejoined the other officers outside, he was neither prompted nor constructively challenged. Instead, they encircled and aggressively confronted him. They did not share their newfound information, but deliberately chose to [TRANSLATION] play with him and force him to try to defend his decision. He was made to feel like an [TRANSLATION] imbecile. The questioning was not in a polite tone. He was yelled at, particularly by Cpl. Johnson, who bellowed that they were all waiting right now! for the Complainant to decide and tell them what he planned on doing. The Complainant claims that in the end the case only resolved itself after he exercised his negotiation skills to convince the driver to not file charges. [140] Cst. McDonald and Cpl. Johnson deny having raised their voices and insist that they were merely assessing the Complainant's decision-making ability. K. Second Extension of Field Training - Weeks 5 & 6 [141] The next block of work shifts began on November 21, 1997. Cst. McDonald worked with the Complainant for the first two days of this period only. The report for this block noted that the calls were fairly routine and the shifts relatively uneventful. Nonetheless, Cst. McDonald mentioned two specific incidents where the Complainant performed well. In one case, he helped process the arrest of a suspect. During these procedures, he established a good rapport with the detainee. This raised the possibility of his becoming a future informant for the police. In another case, the Complainant and Cst. McDonald were dispatched to a call regarding a break-and-entry theft. The Complainant headed off in the last known direction of the suspect. He soon located and apprehended him. The suspect was a career criminal and Cst. McDonald commended the Complainant for insuring that he would remain off the streets for some time. Cst. McDonald concluded the report with a statement that the Complainant found very encouraging: This week was more positive for Cst. Morin and hopefully it will become the norm rather than the exception. [142] For the next several days, the Complainant was tasked by the detachment to provide security at the Asia-Pacific Economic Cooperation (APEC) Summit, held in the Vancouver area. Heads of state and other dignitaries from around the world were in attendance, so security was a vital concern. The Complainant was assigned to work mainly at the final security checkpoint leading into the Simon Fraser University site where some of the meetings were being held. All persons attending this site had to pass through his checkpoint, after having already cleared several others in advance. His task consisted of stopping vehicles, viewing the security passes of the passengers, and relaying their information to the command post by radio. Once their credentials were verified and approved, he would allow the vehicle to enter the grounds. [143] The Complainant testified that his role was vital to the security of the area. There was a large risk involved and a potential for danger. If a vehicle tried to break through the barricade without permission, the Complainant would have to act instinctively and make a quick decision. This could even entail the use of his firearm. The Complainant perceived this assignment as reflecting a positive assessment of his decision-making skills and an endorsement of his abilities as a police officer. Why would he be assigned to a position of such responsibility if he was not yet competent? [144] The reply, according to the RCMP, is that the Complainant's assumption is mistaken. There was not as much responsibility attached to this posting as he suggests. This was the last of several checkpoints and it would have been highly unlikely for any unauthorized person to have made it that far. Furthermore, there was minimal decision-making involved with the actual functions of the posting. The decision on whether to admit or refuse someone was made at the command post, not by the Complainant. Traffic control and low-end security functions are usually assigned to members with less service. [145] Insp. Schlecker testified that when headquarters ordered him to provide a certain number of police officers to work at the APEC Summit, he deliberately sent the weakest members of his detachment, unless officers with specific expertise were being requested. Burnaby was a busy detachment that was already understaffed and he needed to maintain as much competency there as he could. He could not afford to give up his best personnel for basically card and post-viewing duties. Based on the reports he had been receiving, Insp. Schlecker had by then developed some concerns about the Complainant's policing skills, even questioning whether he was a danger to himself and others. But this did not prevent him from assigning the Complainant to the static checkpoint job at the Summit. Areas with a serious potential for volatility were staffed by special groups, such as riot squads and SWAT teams. [146] There is no indication in the evidence that any of the more senior RCMP members who testified or whose names were otherwise brought up, were assigned to work at the APEC Summit. Only three individuals from the detachment were mentioned in the evidence as having participated: Cst. Louis Ma, who had just completed his RFT that year and shared duties with the Complainant at the same checkpoint; Cst. St-Fleur, who was doing his RFT at the time and was assigned to open car doors for dignitaries; and the Complainant. [147] While the Complainant was away working at the APEC Summit, during the 5th and 6th weeks of the second extension of his training, Cst. McDonald testified that he began to reflect on how the RFT was progressing and whether the Complainant would ultimately be successful. He concluded that certain problems relating to the Complainant's decision-making skills were unlikely to be corrected within the remaining weeks of the extension period. Cst. McDonald cited as specific problems, the Complainant's tendency to rush to judgment without adequate information, his disregard for the advice of others, his unwillingness to accept responsibility for poor decisions, and his lack of common sense. The Complainant had told Cst. McDonald that if he did not succeed, he intended to move back to Quebec and seek employment with another police agency. Cst. McDonald knew that if the RFT was to run its course and the Complainant was still lacking in one of the criteria, he would be dismissed from the RCMP. This would stigmatize him and create an obstacle to his seeking future police-related employment. In addition, if the dismissal came at the end of the two month period, it would unfortunately fall right before Christmas. [148] Cst. McDonald claims that out of a sense of compassion, he approached Cpl. Johnson and Sgt. Ross and suggested that the Complainant be offered the immediate opportunity to resign. This would afford him the opportunity to gather his effects and organize his return to Montreal before Christmas as well as ensure that his record would merely show that he had served with the RCMP for a year and then resigned to seek employment elsewhere. There would be no indication that he had been dismissed. Cpl. Johnson welcomed the suggestion, but needed approval from senior management in order to implement it. Insp. Schlecker gave his approval a short time later. [149] Consequently, on the morning of November 30, 1997, at the start of the Complainant's first shift after returning from the APEC Summit assignment, Cst. McDonald and Cpl. Johnson invited the Complainant to breakfast at a local restaurant. Cst. McDonald testified that it was a cordial conversation, during which he pointed out the Complainant's positive attributes as well as the areas of concern. He explained his opinion that the Complainant would not be able to correct the problems in the remaining weeks of the RFT extension. Therefore, he gave the Complainant the option of resigning immediately. Cst. McDonald claims he made it clear that he would still be willing to offer the balance of the full two months of training if the Complainant so desired. [150] The Complainant was shocked by the proposition being put to him. He felt that he was coming off two very positive weeks. He had been encouraged by his last Performance Log, in which Cst. McDonald expressed hope that his positive performance would become the norm. This was hardly suggestive of a premature dismissal. His assignment to the APEC Summit had given him further cause for optimism. [151] After the breakfast meeting, they all went back to the detachment and the Complainant took some time to ponder his decision. Within an hour, the Complainant informed Cst. McDonald that he would exercise the option of resigning from the RCMP. Later that day, they met to discuss Cst. McDonald's final Assessment Report, which reiterated that the Complainant remained in need of improvement with respect to the single criterion of decision-making. The coach attached a three-page narrative to the Report. He listed four ways in which this deficiency manifested itself: the Complainant's tendency to rush to judgment and decisions without adequate information; his disregard for the advice and instruction of senior investigators; his unwillingness to accept responsibility for poor decisions; and his absence of common sense. Cst. McDonald provided details about some of the incidents that had been mentioned in his weekly Performance Logs, as illustrations of the problems experienced, including the November 6th death threats call, the arrest of the teenage girl who had not paid her taxi fare, and the case of the recovered stolen Honda machinery. [152] The following day, Insp. Schlecker met with the Complainant and requested his handgun and badge. They discussed some of the incidents referred to in Cst. McDonald's report. The Complainant claims that he tried again to provide his version of the events but Insp. Schlecker refused to hear it. The decision was already made. Insp. Schlecker explained that as a youngster, he wanted to learn to play the violin but realized that he just lacked the talent for it. In the same way, the Complainant was simply not cut out to be an RCMP officer. The Complainant left the meeting a broken person, his dream having gone to pieces. That evening, several colleagues from work came over to his home. It was very emotional for everyone. [153] The Complainant prepared and submitted to the detachment his own comments that day with respect to the final Assessment Report. He stated that he was very proud to have had the opportunity to receive the best police training in Canada. He thanked all his co-workers, supervisors and superiors for all their support. He did not regret his journey as a Mountie and working with the best. He expressed confidence that it would provide him various openings back home in Montreal. [154] Nevertheless, at the hearing, the Complainant underlined his dissatisfaction with the final Report. Yet again, none of the examples of commendable performance by him during this period were documented in the final Report, even though those incidents had been identified in the weekly Performance Logs. Furthermore, he alleges that he was subjected to differential treatment by his coach and other senior officers throughout this period, including the aggressive confrontation that he endured at the November 6th death threats call, not to mention the subsequent issuance of not one but three negative Performance Logs. He feels that he was also treated unfairly when he was encircled by the other officers during the unpaid taxi fare incident. Most importantly, the Complainant accuses Cst. McDonald of having exhibited conduct that demonstrated a racial prejudice against him and other black persons. Three specific examples were given. [155] The first relates to a sketch that Cst. McDonald allegedly drew one day while at the wheel of their parked patrol car. Cst. St-Fleur and his trainer, Cst. Marx, were seated in an adjacent vehicle. The Complainant claims that Cst. McDonald pulled out a sheet of paper and drew a picture of Cst. St-Fleur, who is also a black man of Haitian origin. The size of his nose and lips was exaggerated in the drawing. Cst. McDonald then stated with a laugh that the Complainant's nose and lips were smaller than those of Cst. St-Fleur. The Complainant did not openly react to this incident, nor did he inform Cst. St-Fleur about it, but he testified that inwardly he felt it was a [TRANSLATION] stupid and racist act. [156] Cst. McDonald categorically denies that this incident ever took place. The Complainant made no mention of the drawing in his human rights complaint. He never told or complained to anyone at the RCMP about it. The reference to a sketch first appeared in the Complainant's disclosure documents, namely the statement of the material facts of his case, which was filed with the Tribunal in February 2003. Curiously, according to the statement, the Complainant witnessed the drawing of a racist sketch in the fall of 1996, not 1997, the artist was Cst. Haney, and the person being drawn was Cst. Albert. The Complainant testified that he had told the Commission about the drawing when he filed the complaint. He added that shortly before the hearing, he had a flash, and came to the realization that it was Cst. McDonald, not Cst. Haney, who had drawn a picture of Cst. St-Fleur, not Cst. Albert. He completed his testimony on this point by repeating that it was Cst. McDonald who was the artist and that he [TRANSLATION] did not want to add anything else about Cst. Haney, it's enough. [157] The second example of racial discrimination given by the Complainant allegedly took place in a fast food restaurant where he, Cst. McDonald and several other officers had stopped during their shifts to have a coffee. Cst. St-Fleur mentioned to Cst. McDonald that his tie was dirty, to which the latter responded, Who looks more dirtier between you and me? The Complainant recalls that Cst. St-Fleur's boots were shined up, his shirt was well-pressed, and he was neatly dressed overall. Indeed, Cst. St-Fleur had a reputation for being a very tidy dresser and in his Field Coaching Assessment Reports, under the criterion of Dress and Deportment, he had received a superior score. The Complainant could only conclude that Cst. McDonald's remark was a reference to Cst. St-Fleur's skin colour. The statement was made in the presence of Cpl. Johnson who did not react in any way. The Complainant viewed this incident as degrading and humiliating, a direct form of racism. This event was not mentioned in the Complainant's human rights complaint, either. [158] Cst. McDonald denied ever making the comment. Cst. St-Fleur on the other hand testified to having a vague recollection of it. He recalls that his bullet-proof vest was very dirty that day. He viewed Cst. McDonald's remarks as referring to his vest, as if to say, whose uniform is dirtier, yours or mine? Cst. St-Fleur looked down at his jacket and realized that Cst. McDonald's comments were justified. Cst. St-Fleur testified that he was surprised when the Complainant later approached him with a shocked look and complained about the remark. Cst. St-Fleur asked him what the big deal was. Cst. St-Fleur suspects that the Complainant was simply not aware of the context of the conversation. It was a reasonable misunderstanding on his part, but a misunderstanding nonetheless. [159] The third incident where the Complainant claims that Cst. McDonald demonstrated insensitivity to persons of colour relates to a discussion that occurred between the two of them and Cst. St-Fleur regarding the RCMP's employment equity program. The coach asserted that black persons and members of other designated groups were being hired by preference over white males. He took the position that this in itself constituted reverse discrimination. The Complainant and Cst. St-Fleur replied that these measures were necessary to correct the under-representation of these groups within the RCMP. The Complainant acknowledges that this exchange was conducted in a professional tone, but he perceives Cst. McDonald's beliefs as evidence that he did not comprehend the extent of the problems facing black persons in the RCMP. The Complainant claims it was hurtful to have to witness this lack of understanding. [160] Cst. McDonald recalled the conversation in his testimony. It related to the initial testing administered to persons applying to join the RCMP. The point score required to advance to the next level of assessment was higher for white males than it was for members of the designated groups. Their discussion turned on whether this was fair, inasmuch as the testing was one-dimensional and persons who would otherwise make competent police officers could end up being screened out. Cst. McDonald claims that he himself pointed out during the conversation that certain groups have historically been under-represented within the RCMP. He alleges that all three of them laughed at the fact that he had to score higher than the other two, but he maintains that he never expressed a negative opinion about that, other than to say that he hoped that the most qualified persons were ultimately selected. According to Cst. McDonald, it was a constructive conversation. [161] The Complainant further contends that Insp. Schlecker, the officer in charge of operations, made statements about visible minorities that were offensive and inappropriate. In December 1998, he was asked by the RCMP to provide his comments regarding the Complainant's present human rights complaint, which alleged differential treatment on account of his colour. Insp. Schlecker drafted a memo in which he stated that up until the Commission's investigation into the complaint, he did not know that Cst. Morin was coloured, and added that the Complainant is of darker complexion, as I, and I believed also from European extraction. Asked at the hearing to comment about these remarks, Inspector Schlecker said, Until I was advised that he considered himself black, I really never thought that Constable Morin was black. He further testified that: He [the Complainant] reminds me of a close friend of mine by the name of [...], who is a Hungarian. He could almost be his twin brother. When I look at Constable Morin I never think of him as being a black man. He [the Complainant] tells me he has black heritage. I believe that and then when I look at him I could say, yes, I could see some of that in you. But without being told that, it is not evident to me. [162] The Complainant points out that several RCMP documents, including the form that was sent to Burnaby from Depot advising of the Complainant's impending arrival for training, clearly specified that he was a black man of Haitian origin. [163] In his memo, Insp. Schlecker also declared that the Burnaby detachment had a much higher than norm ratios [sic] of coloured, race and gender mix because of the high turnover of recruits and managements [sic] desire to mirror the community of Burnaby. Asked at the hearing about his use of the word coloured, he explained that in 1972, he had asked a friend in Saskatchewan who was black, What should we say you are? The friend replied, Well, say I'm coloured. So, when Insp. Schlecker used the term in his memo, he did not think it offensive. The Complainant contends that to the contrary, it is offensive and derogatory, as it relates back to the periods of slavery and segregation in the Old South of the United States. The Complainant points out that there is an important distinction to be drawn between the word used by Insp. Schlecker, and the phrase persons of colour, which is being used increasingly these days, in lieu of the term members of a visible minority group. [164] In reference to the remark in the memo regarding Burnaby's population, Insp. Schlecker was asked at the hearing to describe the make-up of the city. He noted that what we consider as the average white European Canadian is in certain areas of the community becoming almost a minority in the lower mainland [of British Columbia] (my emphasis). L. Return to Montreal [165] Following his resignation from the RCMP, the Complainant and his fiancée, Ms. Cerrato, immediately began preparing for their return to Montreal. They arranged for movers, packed boxes, terminated their lease, and notified utility companies. Throughout this period, the Complainant was not contacted by any senior officer at the detachment to see how he was doing, nor was any logistical assistance offered. A sum of $1,500 was made available to the Complainant to cover some of his expenses for his return home, and he received his salary as a Member until mid-January 1998. Even so, he had no choice but to use up all his savings and incur credit card debt to pay his expenses. In order to minimize his costs, he opted to leave some of his furniture and other property in Burnaby, rather than pay for their transport to Quebec. [166] The couple returned home to Montreal by car, a six day trek during which they passed through some bad weather, almost had an accident, and had to repair their vehicle after a breakdown. It was an ordeal. The Complainant was depressed throughout the trip. [167] Upon his return to Montreal, the Complainant sought employment with several police forces in Quebec. He applied to the municipal force of the City of Laval, but was informed that he needed a college or university level degree in a policing-related field in order to be screened in. He also made an application to the Sureté du Québec. He passed the physical and driving tests, but failed the interview for reasons that were never conveyed to him. He handed in an application to the Brossard municipal police department but never heard any news back. After applying to the police service of the city of Île-Perrot, he was invited to write an exam. He failed the test, due to his lack of familiarity with Quebec provincial statutes. [168] On December 22, 1997, the Complainant applied to join the Montreal Urban Community Police Service (MUCPS) as a police officer. In his application, he explained that the reason he decided to leave the RCMP was his desire to work in his native province, to live close to his family, and to work in English and French. No mention was made of his having been expressly or constructively dismissed. The MUCPS had established an employment equity program to encourage the recruitment of employees from designated groups. In accordance with the program, the Complainant filled out a questionnaire in which he identified himself as a visible minority. [169] After passing his physical test, the Complainant was invited to an interview conducted by a two-member panel. One of the interviewers was Suzanne Lachance. She testified that the interview lasted for about 1.5 hours. Questions were asked of him to assess his maturity, interpersonal abilities, assertiveness, and tolerance to stress. In addition, the panel assessed his responses to three different policing scenarios that were presented to him. These answers were used to measure his analytical and decision-making abilities. After the interview, the panel assessed him with an overall score of 54.82%. A result of 60% or higher was required to recommend him for further consideration for the position of police officer. [170] The panel prepared a report following the interview. The Complainant had only scored 47/90 with respect to the scenarios put to him. It was noted that he had demonstrated some [TRANSLATION] rigidity in dealing with all three cases. He applied laws and regulations [TRANSLATION] by the book and he was not very [TRANSLATION] open to his decisions being called into question. With respect to one of the situational cases presented to him, the panellists were concerned that in his answer, he chose to ignore the advice of a fellow police officer. In another case, the panel was critical of his decision to arrest some young offenders too quickly, without thinking of the consequences. The interviewers detected some impatience in the manner in which he answered all of these questions. Ms. Lachance remarked that he needed to adopt a more tolerant attitude and better acquaint himself with the use of discretion. [171] The panel surmised that the Complainant was still strongly influenced by his exposure to the [TRANSLATION] culture and values of the RCMP, which differed from those of the MUCPS. Ms. Lachance recalled that the Complainant discussed some of the difficulties he faced integrating into the RCMP, primarily as a francophone but also as a black person. He told the panel that he made considerable efforts to adapt. In the end, he opted to resign so as to be closer to his family. The Complainant never informed the panel of his expected failure to pass his RFT that had led to his resignation. Monique Cyr, who was in charge of the selection and performance evaluation process for police personnel of the Montreal Urban Community, explained that the Complaint's concealment of his impending failure might have been discovered later in the process, when an inquiry is done into an applicant's reputation. If such a lack of candour were uncovered at that stage, an unfavourable report would have been drafted regarding his reputation and his candidacy would have been terminated, in the absence of a justifiable explanation. [172] Although the Complainant's score did not meet the standard for police officers, the MUCPS was also looking to hire auxiliary police officers at that time. Their jobs consisted principally of handling inmates who were detained in the MUCPS's facilities. They did not carry weapons. The threshold score for the position of auxiliary police officer had been set at 50%. Since the Complainant had achieved this level, and had previously indicated his interest in this auxiliary position as well, the interview panel decided to continue processing his candidacy, but solely for this job. [173] The Complainant's file was therefore advanced to the next stage. It consisted of a psychometric assessment of the candidate, in which his psychological traits were measured scientifically. All candidates had to undergo this testing. In the Complainant's case, it was conducted by Dr. Anne Geneviève Girard, PhD, an industrial psychologist and a member of Quebec's professional association of certified human resources and industrial relations consultants (l'Ordre des conseillers en ressources humaines et en relations industrielles agréés du Québec). Her mandate from the MUCPS was to determine whether an applicant suffered from any mental or behavioural disorder (psychopathology) and to provide a general overview of the applicant's personality traits. Prior to preparing her assessment of the Complainant, she had not been given any information relating to his first interview or the panel's findings, and was therefore unaware of its decision to consider the Complainant's candidacy for the auxiliary police officer position only. After interviewing and testing the Complainant, Dr. Girard found that the Complainant did not suffer from any disorder that called for an immediate termination of his candidacy. However, she also determined that he only partially satisfied the requirements for the position of police officer. [174] The Complainant's scores were assessed against the scores of all other MUCPS job applicants who had been tested in the past, about 600 persons. He was rated poor with respect to three of the assessment factors (responsibility, empathy, flexibility), which meant that his scores were lower than those of 85% of the group (ie. below the 15th percentile). Based on these results, Dr. Girard wrote in her report to the selection committee that the Complainant's sense of responsibility fell below the norm, that he lacked empathy towards others, and that he was inflexible. He tended to [TRANSLATION] firmly hold on to his ideas and not to be very sensitive to the opinions of others. In her recommendations, Dr. Girard stated that the Complainant could satisfy the requirements for the job of an MUCPS patrol officer, and suggested the examination of his candidacy continue. In her testimony, however, she elaborated that she had no mandate to exclude any of the candidates other than those who had exhibited mental or behavioural disorders. In all other cases her opinion was advisory and not binding on the selection committee. [175] After receiving Dr. Girard's report, the interview panel decided to reassess their own findings. The panel realized that the Complainant's rigidity was not so much rooted in the RCMP environment from which he had just returned, but was instead embedded in his personality. The panel decided therefore not to proceed any further with the Complainant's candidacy, even in regard to the auxiliary police officer position. A letter was sent to the Complainant, dated May 14, 1998, informing him that, pursuant to his psychometric assessment, it was determined that his candidacy did not correspond to the profile sought for the position of MUCPS officer. [176] The MUCPS was not the only prospective employer to administer psychometric testing to the Complainant. On April 9, 1998, he applied to Canadian National Railways (CN) for the position of police officer. In the application, he inscribed resignation as his reason for leaving his previous employment with the RCMP. The Complainant was tested by CN using the General Aptitude Test Battery, which measures some, but not all, of the basic skills required for a clerical position. The aptitudes assessed were intelligence, verbal aptitude, and numerical aptitude. CN set the pass rate at the 25th percentile, which means that 75% of the general population would score higher than this cut-off point. The Complainant placed between the 38th and the 45th percentiles with respect to the three aptitudes assessed by CN. He therefore passed the test, and was in fact offered a job by CN. He had been initially told that a position was available in Quebec, but he was only offered a posting in Toronto. He opted to decline. [177] The Complainant did not limit his job searches to policing. He searched through the classified ads for employment. In early 1998, he obtained work as a security guard in a seniors' home. He worked the midnight to noon shift at $10.00 per hour. For a few weeks around the Christmas shopping season of 1998, he was hired by a couple of department stores as a store detective. He worked several other part-time jobs. In 1999, he took a full-time position on contract as a security guard in a private college. Unfortunately, his job functions included emptying garbage cans. Compared to the duties and responsibilities he held as an RCMP officer, he found all of this work demeaning and embarrassing. But he had no choice. He was carrying a significant debt load. Bankruptcy was not an option as it would likely have barred him from any future employment in policing. [178] The Complainant sought to improve himself academically, so he registered for correspondence courses in drug addiction prevention given by the University of Montreal. He earned his certificate within two years. Thereafter, he took courses in police management from the same university. [179] In July 1999, the Complainant applied for a position with the agency operating Montreal's airports, Aéroports de Montréal (ADM), as an officer - dog-handler (patrouilleur - maître de chien). The role of these officers and their dogs is to search airplanes, packages, vehicles, or any other object in order to detect explosives. These functions had been performed by specialized RCMP officers until 2000, when the service was transferred directly to ADM. The Complainant's application was processed as part of ADM's initial recruitment to replace the departing RCMP officers. [180] In the job application forms, applicants were instructed to provide truthful information, failing which their applications could be refused. One of the questions asked on the form was whether the candidate had ever been dismissed or asked to resign from a previous position. The Complainant answered no. He explained later in the document that he had left his job at the RCMP because it was too far away from his home in Montreal, the rents were too high in B.C., and it was unlikely he would be transferred back to Quebec in the next 10 years. [181] He was asked to take a written exam, which was to be completed within a fixed span of time. In the first portion, the candidate had to complete incident reports in French regarding two video-taped scenarios that were shown to him. The second portion required that he answer two questions in English, one of which also consisted of a scenario. The assessors for this exam did not testify, but the Complainant's answer sheet, together with their comments, were entered into evidence. On one of the incident reports, the remark [TRANSLATION] unsatisfactory is inscribed. The other report is marked [TRANSLATION] satisfactory - borderline - chronology leaves something to be desired. With respect to the English answers, the scenario-based reply was marked [TRANSLATION] unsatisfactory and the other one [TRANSLATION] satisfactory. [182] The Complainant's application was advanced to the next stage, which consisted of an interview conducted in August 1999. He also underwent a physical test and some stringent field testing that extended over several days. In September 1999, ADM offered him the position on an indeterminate full-time basis. He has worked there to this day. He considers the job very rewarding. He responds whenever bomb threats are called or suspicious packages are found. He searches luggage and aircraft, and if his inquiries prove negative, he authorizes the flight crew to allow the passengers to board and to depart. His services were called upon extensively on September 11, 2001. With the assistance of the Sureté du Québec and the RCMP, he inspected 21 airplanes that had been grounded following the hijackings in the U.S. [183] The Complainant contends that his success at this job demonstrates that he possesses the qualifications to be a police officer, particularly since his job used to be performed by RCMP officers. The Respondent disagrees, pointing out that the Complainant does not have the formal status of police officer, he does not have the power to arrest persons, he does not carry a firearm, and he does not conduct investigations. M. Official Languages Complaint [184] Prior to filing the present human rights complaint, the Complainant filed a complaint with the Office of the Commissioner of Official Languages (OCOL), on May 28, 1998. He alleged that although he satisfied the linguistic requirements for the job in Burnaby, he was dismissed because the senior officers at the detachment considered his English-language abilities to be insufficient. The OCOL staff member who received his complaint noted on the complaint form that the Complainant [TRANSLATION] is aware that his complaint does not relate to a question of discrimination. [185] On July 3, 1998, the Complainant, accompanied by his lawyer, attended the OCOL offices in Ottawa and gave a statement regarding his complaint. The notes that were apparently taken by the OCOL staff members who met with him were entered into evidence, but these individuals did not testify. The notes refer to most of the incidents that were raised in the present case. The Complainant reportedly stated that he was annoyed at being called OBO and Kirby Puckett Ass. There is no indication in the notes, however, that he considered these terms to be racist in nature. Indeed, the Complainant did not make any allegation of racism whatsoever before the OCOL. [186] A couple of months later, on September 9, 1998, the Complainant filed the present complaint with the Canadian Human Rights Commission. [187] In September 1999, the OCOL issued its final report after completing its investigation. It concluded that there was no evidence to support the Complainant's allegation that he lost his job due to an inadequate knowledge of English or that he was subjected to linguistic harassment. II. ANALYSIS A. The Section 7 Complaint [188] It is a discriminatory practice, under s. 7 of the Act, to differentiate adversely in relation to an employee, during the course of his employment, on the basis of a prohibited ground, including his colour. It is also a discriminatory practice to dismiss an employee on this prohibited ground. [189] The initial burden of proof rests with the complainant, who must establish a prima facie case of discrimination. The basic guidance for what is required to make out a prima facie case was provided by the Supreme Court of Canada in Ontario Human Rights Commission v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536 at para. 28 (O'Malley). The Court stated that a prima facie case is one that covers the allegations made and which, if the allegations are believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent. Once the prima facie case is established, the onus then shifts to the respondent to provide a reasonable explanation demonstrating that the alleged discrimination did not occur as alleged or that the conduct was somehow non-discriminatory. If a reasonable explanation is given, it is up to the complainant to demonstrate that the explanation is merely a pretext for discrimination (see Basi v. Canadian National Railway Company (No. 1) (1988), 9 C.H.R.R. D/5029 at para. 38474 (C.H.R.T.); Lincoln v. Bay Ferries Ltd., 2004 FCA 204 at paras. 17-18). [190] Discriminatory considerations need not be the sole reason for the actions at issue in order for the complaint to be substantiated. It is sufficient that the discrimination be one of the factors in the employer's decision (Holden v. Canadian National Railway Company (1991), 14 C.H.R.R. D/12 at para. 7 (F.C.A.)). The standard of proof in discrimination cases is the civil standard of the balance of probabilities. [191] As was pointed out in Basi, supra, at paragraph 38481, discrimination is not a practice that one would expect to see displayed overtly. In fact, rarely are there cases where one can show by direct evidence that discrimination is purposely practiced. A tribunal should therefore consider all circumstances in determining if there exists a subtle scent of discrimination. An inference of discrimination may be drawn where the evidence offered in support of it renders such an inference more probable than the other possible inference or hypothesis (B. Vizkelety, Proving Discrimination in Canada, (Toronto: Carswell, 1987), at 142; see also Chopra v. Dept. of National Health and Welfare (2001), 40 C.H.R.R. D/396 (CHRT)). B. Prima Facie Case [192] The Complainant submits that he was subjected to differential treatment throughout his RFT and that his colour was a factor in this differentiation. He also contends that his colour played a role in the decision to terminate his employment, or alternatively, that the mistreatment he experienced impacted on his performance, which ultimately resulted in his dismissal. [193] The Complainant argues that he was treated differentially while being trained by all three of his coaches. With respect to Cst. Haney, he cites the following treatment: Timing the Complainant's response times to the scene of a call; Timing his report-writing; Insisting that he re-write his reports; Denying him access to the office computers; Insisting that he change the format of his notebook; Refusing to mention positive or commendable acts in the Assessment Reports; Repeatedly yelling at him; Suggesting only weeks into his RFT that he was not suited to be a police officer and should consider quitting. [194] The Complainant contends that other trainees were not treated in this way. He believes that his colour was a factor in Cst. Haney's behaviour towards him, as illustrated by the following: Addressing the Complainant as OBO and Kirby Puckett Ass; Asking him and Cst. St-Fleur if they had shaken hands like black men do. [195] The Complainant contends that not only is the term OBO connected to slave-auctions, but that its usage by Cst. Haney referred back to the mistake that the Complainant had made on his first day at work. It was therefore suggestive of a lack of intelligence, which he argues is a negative racial stereotype ascribed to black persons. [196] Dr. Frances Henry, PhD, F.R.S.C., was called by the Complainant to testify as an expert on the basis of her broad and general expertise on notions of racism, racial discrimination and harassment in society at large and in the workplace, from a social sciences perspective. She gave evidence that the reference to Kirby Puckett, who is known for his large posterior, called attention to the well known physical characteristic of many people of African origin - their high rounded buttocks. She submitted that this was therefore an inappropriate nickname, particularly considering the asymmetrical relationship that existed between the coach and his trainee. There was little that the Complainant could do to challenge the use of such terminology other than quietly accept it. [197] The repeated timing of the Complainant's work implied that he was lazy and slow. Dr. Henry identified the possibility of stereotyping here as well, in that a powerful and very negative image of Blacks is that they are slow. [198] The Complainant submits that the differential treatment continued while he was under Cst. Carr's tutelage. This included the ongoing timing of his activities, the failure to mention praiseworthy conduct in the Assessment Reports, and the attempt to persuade him to quit the RCMP. The Complainant also believes that Cst. Carr was instrumental in Cst. Marx's decision to issue a second Performance Log in connection with the ride-along shift, to negate the positive message that had been conveyed about the Complainant in an earlier Performance Log. [199] It is argued that Cst. Carr's overall attitude towards the Complainant was not conducive to the development of a zone of comfort between them, which in turn had a chilling effect on the Complainant's willingness to ask questions and seek advice. Any lapses in his earlier training, attributable to the poor treatment received at the hands of Cst. Haney, were thus exacerbated. His performance naturally bore the cost. [200] The differential treatment continued into the second RFT extension period, under Cst. McDonald. The Complainant believes that the circumstances surrounding the December 6th, 1997, incident clearly illustrate that he was treated differently when compared to other RCMP recruits and members. Not only was he affronted and physically attacked by Cst. McDonald in the building hallway, but he was saddled thereafter with three negative 1004 Performance Logs, a never before seen practice, which virtually sealed his fate. This persecution, contends the Complainant, was repeated during the subsequent call involving the teenager who had not paid the taxi driver. The senior officers ridiculed him. Their actions were unjustified. [201] In addition, just as was the case with the other trainers, Cst. McDonald did not take into consideration some of the Complainant's better work. Indeed, the Complainant questions how the decision to dismiss him came about, in light of his sound performance during the last block of work shifts and at the APEC Summit. He believes that another factor must have been at play - discrimination on the basis of his colour. [202] Three incidents are specifically mentioned in support of this assertion: Cst. McDonald's sketch, in which Cst. St-Fleur's physical features as a black man were exaggerated, and Cst. McDonald's subsequent comment comparing the respective features of Cst. St-Fleur and the Complainant; Cst. McDonald's remark that Cst. St-Fleur was dirtier than Cst. McDonnald's tie; and Cst. McDonald's disapproving comments about employment equity policies within the RCMP. [203] The Complainant also alluded to a sort of domino effect that may have developed from one RFT period to the next. He claims that the Assessment Reports of the initial RFT period were tainted due to Cst. Haney's discriminatory attitude. The negative perceptions of the Complainant were carried forward as these reports were successively read by the other trainers who were therefore influenced by Cst. Haney's discrimination. This influence extended informally to other members of the detachment. For instance, many of the witnesses who were working at the detachment at the time were aware that the Complainant's nickname was OBO, and even knew the circumstances regarding the used car ads which gave rise to its usage. The Complainant believes that in the same fashion, word about Cst. Haney's poor assessment of him must have reached the others at the detachment. [204] Although his RFT assessments were made by the three coaches who worked directly with the Complainant, he points out that the decision to constructively dismiss him ultimately rested with Insp. Schlecker. The record, it is argued, contains numerous offensive comments from Insp. Schlecker illustrating a prejudiced view of visible minorities, such as the use of the term coloured people and his comment about average white European Canadians. [205] Moreover, the Complainant submits that these remarks are indicative of a widespread prejudice against visible minorities that permeated throughout the Burnaby detachment. It was acknowledged by some of the witnesses that the term DWO, meaning driving while oriental, had been occasionally used at the time by at least a few officers. The use of this term and Insp. Schlecker's remarks indicate the presence of what Dr. Henry described as a discourse of we and they amongst the Burnaby detachment's personnel, where members of minority groups were perceived as outsiders. [206] In the end, the Complainant's case boils down to a simple point. He is a black man who, despite successfully completing his training at Depot, was told that he was not going to pass his RFT and would not be hired as a regular member. In effect, he was dismissed from the RCMP. According to the evidence, around the same time as the Complainant's RFT, the only individuals who required an extension in order to pass their RFT at the Burnaby detachment were two black men (Cst. St-Fleur and Cst. Knight). It would appear that a short time prior to the Complainant's RFT, a white female candidate did not pass her RFT. Furthermore, just like the Complainant, Cst. St-Fleur's first coach (Cst. Marx) told him part way through his RFT to consider changing his career. Cst. Marx also found that Cst. St-Fleur needed to improve his ability to define problems and his decision-making skills. [207] Taking all of the preceding elements into account, and applying the O'Malley test, I am satisfied that if these allegations are believed, they are complete and sufficient to justify a verdict in the Complainant's favour, in the absence of an answer from the Respondent. The prima facie case has been established. C. The RCMP's Explanation [208] According to the RCMP, the Complainant was dismissed because he was not qualified to be a regular member. There was no other factor at play. Police officers are entrusted with extraordinary powers for the execution of their duties. It is therefore essential that they be reliable, honest, and in possession of good judgment. This is a bona fide occupational requirement. It is during an officer's probationary period that a police force assesses these essential qualities in a recruit. If a new member does not demonstrate that he satisfies these requirements, then in the interest of public safety, his employment must be terminated. [209] The Respondent submits that the Complainant lacked the qualities and abilities needed to act with good judgment, on a regular and predictable basis. The evidence shows that under stress, he was unable to reason properly, and could not explain or justify the decisions that he made. He did not manage to demonstrate that he was able to reliably, on a regular basis, take all factors into account when formulating his decisions. [210] A probationary employee does not benefit from the same level of job security as a permanent employee. Employees on probation are meant to undergo a period of testing, demonstration or investigation of their qualifications and suitability for regular employment as permanent employees (Jacmain v. Attorney General (Canada), [1978] S.C.R. 15 at 38). Probationary employees may be terminated if, in the employer's judgment, they have failed to meet the standards set and are considered to be unsatisfactory. [211] In Daniels v. Hamilton-Wentworth (Regional Municipality) Police Services Board (No. 2) (1996), 31 C.H.R.R. D/189 (Ont. Bd. Inq.), this principle was applied in a police hiring setting. The complainant alleged that he was treated unequally and was dismissed near the end of his probation as a police constable because of his race and colour. The Board found that his race was not a factor and noted, at paragraph 125, that it is within an employer's rights to release an employee who is not considered likely to meet the standards of performance required by the organization. Performance criticisms are legitimate factors to consider in assessing the suitability of retaining a probationary constable to become a member of a permanent police force. [212] In the present case, the Complainant was clearly in a probationary situation. He had to meet the required standards under the Field Coaching Program by the sixth month of his field assessment, in order to be recommended for entry into the RCMP as a regular member. If the Complainant did not meet the standards, it was legitimate to dismiss him, subject to the following qualification: the employer's decision could not be tainted by bad faith (see Jacmain, supra at 37), and it could likewise not be tainted by conduct that is proscribed under the Canadian Human Rights Act. [213] The assessment process utilized by the RCMP during the field training was largely subjective. Trainers evaluated recruits against certain criteria, but the evaluation standards and methods could conceivably vary from one coach to another. The Complainant submits, for instance, that Cst. Haney was particularly harsh in his methods and his assessments. But, as was pointed out in Folch v. Canadian Airlines International (1992), 17 C.H.R.R. D/261 at para. 165 (C.H.R.T.), the fact that an employer uses subjective criteria in its evaluation of applicants does not in itself render its hiring decisions subject to attack under the Act. Where subjective criteria are used, it may be necessary to scrutinize the hiring decisions more carefully to insure that subjective assessments are not being used to mask discrimination. However, it is not the function of the Tribunal to determine whether it agrees with each of the hiring decisions made by the employer. Its function is to determine whether the complainant was discriminated against on the alleged grounds of discrimination. [214] Did the Complainant meet the RCMP's standards? The Respondent submits that he unquestionably failed to do so. This was meticulously documented by not one, but three separate coaches. Initially there were several concerns, but ultimately the common and key preoccupation for all the coaches were the Complainant's decision-making skills. They constituted one of the 28 specified criteria in which a recruit must demonstrate competence. The Field Coach Program Standard sets out 11 components of decision-making that a recruit must demonstrate to be successful. They include: making professional decisions that take into account community needs even under difficult and stressful situations; considering a range of alternative courses of action; taking into account new information or advice and reconsidering decisions; clearly and concisely defending decisions made, and responding to questions or challenges that are raised. [215] The Respondent submits that the incidents referred to in all three coaches' Assessment Reports document that the Complainant lacked competence in each of these areas. For instance, all four of these components were absent in his handling of the call involving the teenager and the taxi driver that took place in the fourth week of his second extension, shortly before he resigned from the RCMP. The arrest of the girl was not in the community's interest and was implemented before he had considered an alternative course of action. He was unable to defend his decision when challenged by senior members, and when finally presented with new information (the girl's perspective on the incident), he had to be prompted to reconsider his decision. [216] Furthermore, in attempting to justify his errors and deflect criticism, he would deliberately mislead senior officers, as occurred in the incident involving Cpl. Waters where the Complainant falsely stated that he was at court all day on November 6, 1997. This demonstrates, it is argued, that he lacks the honesty expected of RCMP officers. [217] The three trainers were not alone in finding that the Complainant was lacking in his decision-making skills. Cst. Albert found that the Complainant was rushing to judgment and was not thinking things through, when he let the teenaged shoplifter return to the group home unescorted. Cst. Van Overbeek complained about the Complainant's decision to leave a suspect unattended at a crime scene. Cst. Akow questioned his decision to leave seized marijuana stored in his duty locker for a month. Cst. Merritt criticized the Complainant for concentrating his attention on a civil dispute instead of focussing on the criminal matter for which he had been called. [218] There is no evidence to support the Complainant's claim that these officers and the trainers who succeeded Cst. Haney were somehow influenced or tainted by the first trainer's alleged racial biases. Burnaby was, after all, a very large detachment and over the course of his RFT, the Complainant worked with several teams, during various work shift blocks and in three different districts. Cst. McDonald did not even know Cst. Haney, and had only a passing acquaintance with Cst. Carr. [219] The Complainant takes issue with most of the negative assessments ascribed to his performance. He contends that he was wrongly criticized, and that his versions and explanations of what transpired during the various incidents cited were not considered. In most of the cases, the Complainant feels that he took the appropriate action, or that his errors were inconsequential and did not warrant criticism. That may be, but in my view, we cannot lose sight of the fact that this is a probationary period during which the employer is subjectively assessing the qualifications of the candidate. The mere fact that the Complainant's performance was criticized by his trainers and other more senior members does not prove that he was being discriminated against. As spelled out in Folch, it is not the role of the Tribunal to second-guess an employer's assessment of an employee's performance, unless there is evidence that a discriminatory ground was a factor. I would add that it is also not the role of the Tribunal to second-guess the choice of training and assessment methods that an employer may utilize with respect to a particular individual (e.g. measuring his time to respond to a call or imposing a specific format for a notebook), provided once again that discrimination is not a factor in their implementation. [220] The Complainant submits that if one takes into consideration the circumstantial evidence surrounding his RFT at Burnaby, an inference can be drawn that the RCMP's explanation is just a pretext and that in fact, his colour was a factor. The Complainant's most oft-cited proof in support of this assertion was the fact that Cst. Haney gave him the nickname OBO, and that the term continued to be used by the coach and others at the detachment thereafter. I do not, however, accept the Complainant's contention that this term is in and of itself infused with racial overtones that hearken back to slave auctions in pre-emancipation America. No evidence from any reference source, be it dictionary, encyclopaedia, almanac, or text book, was introduced to support this assertion. To the contrary, the Complainant's own witness, Dr. Henry, who is an expert in racism and racial discrimination, testified that she had never before heard of the use of the terms OBO/or best offer as racial epithets. It leaves one with the distinct impression that the meaning ascribed to the term was devised for the sole purpose of advancing this case. I am mindful that one of the Complainant's witnesses, Cst. Aubrey Bacchus, an RCMP officer who worked with him at Burnaby, testified that he was aware of the term's claimed connotation. However, he presented his evidence in a manner that was remarkably similar to that previously put forth by the Complainant. In light of the utter absence of any other independent source for this definition, Cst. Bacchus' testimony is cast into doubt. I am therefore not at all persuaded that the term bears in and of itself any racial connotation. [221] But what of the Complainant's subsidiary submission that the nickname is suggestive of a lack of intelligence, which is a racial stereotype? In this regard, I note that the Complainant was not the only person in the RCMP to have a nickname. Cpl. Cousins testified that one person who developed lice while at Depot was called Bugs for years thereafter. Cst. McDonald recalled that another recruit who apparently had misunderstood the meaning of the abbreviation L.N.U. in relation to a suspect (last name unknown), ended up being called by this phrase thereafter. Cst. Anthony Akow testified that he was known as Silent H because he pronounced his first name Antony. Cst. Haney testified that he was known as Dumbo, in reference to the shape of his ears, and Weenie Boy because he liked to eat hot dogs. [222] None of these terms are particularly flattering, nor arguably are they respectful of another's dignity. Cst. Haney and others confirmed that it is now increasingly frowned upon within the RCMP to address anyone by anything other than their proper names. This is a welcome development perhaps, but does it imply that the nicknames used in the past were discriminatory? In the case of the particular term OBO, none of the witnesses who called the Complainant by this nickname or who were aware of its existence, gave any indication that they associated it with a lack of intellect on the part of the Complainant. To the contrary, it was noted by several witnesses, including Cst. Haney, that the Complainant was considered by them to be an intelligent, not to mention amicable, person. Cst. Haney's explanation that the name was simply in keeping with the level of camaraderie that existed amongst members of the detachment is entirely consistent with the scene that appears in the home video. None of the witnesses testified ever having been asked by the Complainant to cease calling him by that name. In all of these circumstances, I am unconvinced that the use of this nickname by Cst. Haney suggests that his opinions about the Complainant's intellect were tainted by racial or discriminatory overtones. [223] The term Kirby Puckett Ass, with its reference to the famous African-American athlete, might have appeared more obviously linked to the Complainant's colour, especially given the Complainant's somewhat perplexing testimony as to how the term was first used. The impression he gave was that suddenly, one day, without any warning, Cst. Haney turned to him in the locker room while he was getting dressed, and called him Kirby Puckett Ass. There was no context given for the statement. It is unfortunate that the Complainant chose not to provide the background to the remark in his evidence because his failure to do so could have had a misleading effect. [224] Cst. Haney gave the context in his evidence, which was not contradicted. He explained that they were speaking jovially with one another, pleased with their accomplishment at having apprehended a suspect after a difficult chase. The Complainant asserted that he could have outrun Cst. Haney. It seems perfectly logical for someone in the coach's position to have questioned sarcastically, in defence of his own running skills, whether the other individual thought he possessed a professional athlete's talent. Cst. Haney was asked in his cross-examination why he chose the name of a black athlete and not someone else. His explanation was that Kirby Puckett is an athlete who looked like the Complainant in build and in colour. In my opinion, the selection of a black person as a comparator does not lend to the comment a biased or prejudicial connotation in itself. If Cst. Haney wanted to invoke the name of an athlete, must he necessarily have chosen the name of a white athlete in order to avoid the risk of his remark being labelled as racist, as argued by the Complainant? This seems absurd. [225] Does the addition of the word ass connote a degrading remark related to what Dr. Henry described as the well known physical characteristic of people of African origin? Several popular idioms certainly exist in our times that incorporate the word ass, but do not necessarily make reference to a person's posterior. For instance, smart-ass is used to describe someone who is a smart aleck (The New Shorter Oxford English Dictionary), and hard-ass is slang for one who inflexibly follows or enforces rules (American Heritage Dictionary of the English Language, Fourth Edition). Cst. Haney said he had no particular reason for having added the word ass to the name, though he did indicate that he associated the Complainant's and Kirby Puckett's running ability with a powerful lower torso. He categorically denied having in any way intended to refer to the Complainant's race or colour. [226] The Complainant contends that even if Cst. Haney did not bear any such intentions, underlying his comments subconsciously were the stereotypes alleged. Dr. Henry testified about a phenomenon, which she called whiteness in discourse, pursuant to which white persons are generally not aware of their racial classification as white and do not realize that they see the world through white eyes. In my opinion, although the interpretation of the term being proposed by the Complainant is certainly possible, Cst. Haney's explanation, in the specific context of the conversation, seems equally persuasive. [227] With respect to Cst. Haney's remark about how black men shake hands, the Complainant submits that it exemplifies what Dr. Henry described as the we and they discourse. It shows that Cst. Haney views black RCMP officers as outsiders. On the other hand, Cst. St-Fleur did not perceive the comment as having a racial tone. Can an inference of racist overtones be drawn? I am not convinced that the interpretation made by the Complainant is more probable than that proposed by Cst. St-Fleur and the RCMP. I am therefore not persuaded that there were racist overtones in the comment. [228] The Complainant seemed to suggest that Cst. Haney's coldish attitude with respect Ms. Cerrato was somehow demonstrative of his prejudice. I fail to see how. Cst. Haney's explanation is reasonable. The relationship between him and the Complainant had already become somewhat strained by the time she arrived at Burnaby in late December 1996. After all, it was at about the same time that the Complainant had complained to Cpl. Fischer about Cst. Haney's training techniques. There is nothing to indicate that this explanation is unfounded or pretextual. [229] It is difficult to accept the Complainant's submission that by timing his performance, Cst. Haney and Cst. Carr were expressly or implicitly suggesting that he was lazy, and by inference, applying a stereotype commonly attributed to black persons. It is a fact that when the Complainant first arrived, he was not familiar with the geography of Burnaby and his response times were slow. Furthermore, several senior officers, in addition to Cst. Haney and Cst. Carr, recognized that it was taking a long time for the Complainant to draft his reports. The adoption of the timing tool was meant to improve the Complainant's performance, and indeed his response times did get better. It may have put additional stress on the Complainant, but as I have stated earlier, it is not the function of the Tribunal to determine if a certain training technique is appropriate or not. The same could be said of Cst. Haney's alleged shouting, which he denied and which was not corroborated by any other witness. [230] It should also be added that according to the Field Coaching Program Standard, coaches were clearly not supposed to record in their Assessment Reports examples of conduct demonstrating that the employee had met the suitable standard. Only work that did not meet the standard or that was superior was to be documented. I therefore find no fault with the trainers' recording so-called negative acts in their reports. This is what was expected of them. [231] The Complainant does not point to any specific evidence from which one may infer that discrimination was a factor in Cst. Carr's conduct, other than the fact that he continued applying the training techniques and practices first adopted by Cst. Haney. Moreover, there is evidence that Cst. Carr (and Cst. Haney for that matter) made additional efforts to help the Complainant pass his RFT: Cst. Carr prepared fact-based scenarios on audiotape for the Complainant to use; Cst. Haney conducted special training sessions at his home. In addition, other than the Complainant's suspicions, there is no evidence to support the contention that Cst. Carr had anything to do with Cst. Marx's filing of a second 1004 Performance Log. On the contrary, the evidence is that Cpl. Avery asked for the revision. [232] The situation changes somewhat with respect to the final trainer, Cst. McDonald. The Complainant submits that his biases were revealed in his sketch of Cst. St-Fleur. However, I do not give this evidence any weight. Here is an alleged incident with fairly obvious discriminatory overtones. Yet the Complainant makes no mention of it to anyone at the time, nor does he allude to it in his remarks following his final Assessment Report. Furthermore, he does not raise it in his OCOL complaint, in his human rights complaint, nor even with the Commission investigator. The matter is brought up for the first time in February 2003, in the disclosure of the material facts of his case, and even then, we are later told at the hearing of a sudden last-minute recollection that the sketch artist and the person caricatured have been wrongly identified in the disclosure document. The Complainant's allegations with respect to the sketch are simply not credible. [233] Cst. McDonald's remark to Cst. St-Fleur about who is dirtier is similar to the black men comment; it could support more than one interpretation. Cst. St-Fleur, who was directly involved in the conversation, states that the Complainant misunderstood, and that the comment related to his vest, not his skin colour. [234] Finally, there are the comments about the RCMP's employment equity program. I am not persuaded that Cst. McDonald's expression of an opinion on this matter is necessarily demonstrative of intolerance to others. The Complainant acknowledged they had a civil discussion on the subject. The interaction between employment equity policies and traditional staffing processes is a topic of recurring public discussion. In fact, the provisions and operation of the Employment Equity Act, R.S.C. c. E-5, are themselves subject to a comprehensive review by the House of Commons every five years (s. 44). I do not therefore believe that an underlying racist or discriminatory tendency can be inferred from Cst. McDonald's actual comments on the issue. [235] Insp. Schlecker made several remarks relating to the Complainant's visible minority status, both in the documentation that he filed during the course of the Commission investigation, and in his testimony. His comments were certainly demonstrative of the discourse of we and they. His apparent belief in the existence of ordinary Canadians of any particular colour or origin is disconcerting. It is equally astonishing that someone of his stature and experience within the RCMP would refer to people of African ancestry as coloured, showing disregard for the significance and regrettable history behind this term. Nonetheless, it is also clear from the evidence that while the formal decision to dismiss the Complainant emanated from Insp. Schlecker, in reality, he merely deferred to the opinions of the Complainant's trainers and supervisors, as well as Cpl. Cousins. It is evident that he did not have any determinative role to play in the process. [236] The Respondent argues that no inference of discrimination can be drawn from the experiences of Cst. St-Fleur and Cst. Knight. Cst. St-Fleur testified that he had a personality conflict with his trainer, Cst. Marx, and that they did not agree on the manner in which police work should be conducted. Therefore, at his own request, he was assigned a new trainer with whom he was better able to relate. He ultimately passed his RFT. He testified that he does not believe Cst. Marx discriminated against him. He and Cst. Marx simply did not get along. [237] Interestingly, Cst. Knight's replacement trainer was Cst. McDonald, and it was under his tutelage that he passed his RFT. He found Cst. McDonald very fair and relaxed. He was at ease working with this trainer. Cst. Knight required an extension because his report-writing was found to still be in need of improvement after the first six months, possibly as a result of dyslexia. The Respondent alleges that if there was a common factor to be found between the Complainant and Cst. St-Fleur, which could have influenced their performance during their RFT, it was not discrimination on the basis of their colour. Rather, they were both francophones working in a unilingual English environment, which put them at a certain disadvantage. Whether or not this was the case, however, I find that there is insufficient similarity between the experiences of the two other officers and the Complainant to allow for the drawing of any inference. Ultimately, there is a fundamental difference between the other two recruits and the Complainant - they succeeded in their RFT, while the Complainant did not. [238] Does all of this evidence put together raise the subtle scent of discrimination? In my opinion, it does not. The evidence offered in support of the Complainant's claim does not render the inference of discrimination more probable than not. On the contrary, in light of what transpired after the Complainant's departure from Burnaby, I am convinced that the explanations provided by the Respondent are reasonable and complete. [239] The Complainant's application upon his return to Montreal to join the MUCPS as a police officer was refused for virtually the same reasons as those cited by the RCMP. These findings were reached despite the MUCPS' having absolutely no knowledge of the Complainant's assessments and the circumstances surrounding his departure from the RCMP. After interviewing and testing him, the selection committee discovered that he was excessively rigid in his decisions, that he applied laws by the book without taking all factors into consideration (including the advice of another officer), and that he was not open to criticism. Similar conclusions were independently reached by Dr. Girard after her psychometric examination of the Complainant. These conclusions are strikingly similar to those given by all three of the Complainant's coaches, not to mention the other RCMP members who had also made observations about his performance. [240] Although the Complainant was not hired by several other police departments, the Respondent chose, during the hearing, to place particular emphasis on the Complainant's application to the Île-Perrot force. The Complainant attended the hiring exam without having studied Quebec provincial statutes in advance. He was therefore unprepared and did not pass. The Respondent argues that it would have been only logical to expect that an exam being given by a municipal force in Quebec would test applicants on provincial law. The Complainant's failure to realize this and prepare accordingly demonstrates the same lack of judgment that was perceived by his coaches and supervisors back in Burnaby. [241] Even the Complainant's current employer, ADM, identified some problems with his report-writing abilities (an area in which the RCMP also found him deficient going into his first extension period) and with his answers regarding a crime-based scenario. [242] Moreover, one also finds evidence upon the Complainant's return to Montreal of a lack of honesty that the RCMP had also purportedly perceived during his RFT. He never informed any of his potential or actual employers of the true circumstances regarding his employment with the RCMP. I can appreciate the Complainant's explanation given in his testimony. He was in dire financial straits and feared that such a disclosure could jeopardize his employment opportunities. However, I am also mindful that at least two of these employers had made it abundantly clear that misrepresenting the facts on an application would almost automatically lead to a rejection of his candidacy. He opted to withhold the information just the same. [243] The Folch decision cautioned that where an employer uses subjective criteria to assess an employee, the hiring decision should be subjected to greater scrutiny. I have scrutinized the RCMP's decisions closely and I am satisfied that the explanation given for not hiring the Complainant is reasonable, particularly in light of the independent yet strikingly similar evaluations he received from the other employers. I have not been persuaded, on the balance of probabilities, that discrimination on the basis of the Complainant's colour was a factor in his failure to pass his RFT. [244] There is no question that discrimination is not likely to be practised overtly in Canada, particularly within organizations like the RCMP. A human rights tribunal must inescapably inquire into all the circumstances in order to detect the presence of that odious yet subtle scent of discrimination. I have engaged in this exercise in the present case and determined that the circumstantial evidence of alleged discrimination, particularly as it relates to the conduct of the coaches and other senior members at Burnaby, was equivocal at best. A case will not be substantiated where the inference a complainant is proposing is not shown to be more probable than that proposed by the respondent. In the present case, I am convinced that not only is the RCMP's explanation more probable, it reflects the genuine and sole cause of the Complainant's dismissal. Discrimination on the basis of his colour was not a factor. D. The Section 14 Complaint [245] It is a discriminatory practice, under s. 14 of the Act, to harass an individual on a prohibited ground of discrimination in matters related to employment. [246] Harassment, as proscribed under the Act, has been broadly defined as unwelcome conduct related to one of the prohibited grounds of discrimination that detrimentally affects the work environment or leads to adverse job-related consequences for the victims (Janzen v. Platy Enterprises Ltd. [1989] 1 S.C.R. 1252 at 1284; Rampersadsingh v. Wignall (No. 2) (2002), 45 C.H.R.R. D/237 at para. 40 (C.H.R.T.)). In Canada (HRC) v. Canada (Armed Forces) and Franke, [1999] 3 F.C. 653 at paras. 29-50 (F.C.T.D.) (Franke), Madame Justice Tremblay-Lamer articulated the test for harassment under the Act. In order for a complaint to be substantiated, the following must be demonstrated: The respondent's alleged conduct must be shown to be related to the prohibited ground of discrimination alleged in the complaint (in the present case, the Complainant's colour). This must be determined in accordance with the standard of a reasonable person in the circumstances of the case, keeping in mind the prevailing social norms. The acts that are the subject of the complaint must be shown to have been unwelcome. This can be determined by assessing the complainant's reaction at the time of the alleged incidents of harassment and ascertaining whether he expressly, or by his behaviour, demonstrated that the conduct was unwelcome. A verbal no is not required in all circumstances - a repetitive failure to respond to a harasser's comments constitutes a signal to him that his conduct is unwelcome. The appropriate standard against which to assess a complainant's reaction will also be that of a reasonable person in the circumstances. Ordinarily, harassment requires an element of persistence or repetition, but in certain circumstances even a single incident may be severe enough to create a hostile environment. For instance, a single physical assault may be serious enough to constitute harassment, but a solitary crude joke, although in poor taste, will not generally be enough to constitute harassment since it is less likely, on its own, to create a negative work environment. The objective, reasonable person standard is used to assess this factor as well. Finally, where a complaint is filed against an employer regarding the conduct of one or more of its employees, as in the present case, fairness demands that the victim of the harassment, whenever possible, notify the employer of the alleged offensive conduct. This requirement exists where the employer has a personnel department with a comprehensive and effective harassment policy, including appropriate redress mechanisms, which are already in place. E. Was the Impugned Conduct Related to the Complainant's Colour? [247] The Complainant alleges that he experienced both a direct, more focussed form of harassment, as well as one that was more broad and general in scope. He argues that the use of the nicknames OBO and Kirby Puckett Ass clearly constituted harassment on the basis of his colour. On the other hand, he claims that his allegedly harsh treatment during his training, the unfair evaluations and the overall micro-management of his RFT, together also amounted to harassment. [248] I have addressed the term OBO earlier in my decision. I am not persuaded that it bears any racial connotation. In Stadnyk v. Canada (Employment and Immigration Commission) (2000), 38 C.H.R.R. D/290 at para. 25, the Federal Court of Appeal indicated that where a sexual harassment complainant is a woman, the reasonable person standard should be adapted to the standard of a reasonable woman. The Court noted that there was expert evidence before the tribunal to explain the variance in perception between a reasonable man/person and a reasonable woman. In the present case, all we have is the evidence of Dr. Henry, an acknowledged expert in the field of racism, who testified that she had never heard of any relationship between the term OBO and slave auctions. She did, however, suggest that the nickname implied a lack of intellect, which alludes to a racial stereotype of black persons. As I have already indicated, the actual circumstances of this case do not support this contention. This nickname arose as other nicknames did in the RCMP - as a sign of familiarity and camaraderie. In any event, as I elaborate below, Dr. Henry's findings were based on an incomplete knowledge of the facts of the case, and their value to the Tribunal is significantly diminished, as a result. I am satisfied that the nickname does not reasonably have any connection to a black person's colour. [249] On the other hand, I find that the evidence supports the argument that a reasonable person would perceive the Kirby Puckett Ass remark as relating to a black person's colour, whether or not Cst. Haney intended it to be so. I am satisfied that Kirby Puckett is an African-American baseball player who, aside from his athletic abilities, had a reputation for having a muscular, corpulent build, incorporating what some viewed as a rather large posterior. Considering certain racial stereotypes about the physical features of persons with African ancestry, it would be reasonable for a recipient of this comment who is black to view it as relating to his or her colour. [250] I do not, however, feel that a reasonable person in the circumstances of this case would perceive the micro-management of the Complainant's training as being related to his colour. As I have already explained, the Complainant's performance was wanting, and the employer, particularly during the probationary period, was entitled to use the means it deemed appropriate, both to train and to assess the recruit. [251] As I just mentioned above, I feel it important to note that many of Dr. Henry's assertions in her evidence were made based on an incomplete knowledge of the facts of this case. Prior to preparing her report and testifying, she had been presented with only a few documents, such as the Commission investigation report and a synopsis prepared by Commission counsel. Notably, she did not have the benefit of viewing any of the evidence relating to the Complainant's job applications upon his return to Montreal. She was also one of the first witnesses to testify for the Complainant and obviously did not hear any of the evidence regarding the Complainant's performance during the RFT that was introduced by the Respondent later on in the case. Overall, the Tribunal has some misgivings with regard to many of Dr. Henry's findings in her report and in her testimony. She drew numerous conclusions based on incomplete information, and in a manner that occasionally tended to usurp the Tribunal's functions. [252] I would make a similar remark with respect to a portion of Dr. Girard's evidence as well. Aside from testifying about her observations regarding the MUCPS testing that she had conducted in 1998, the Respondent asked her to draw certain conclusions about the Complainant's abilities. These conclusions were formulated based on the results of the psychometric testing administered to the Complainant by CN, and on his alleged conduct while at Burnaby and thereafter. Dr. Girard did not have the benefit of hearing all of the evidence in this case. Indeed, the facts on which she based some of her assumptions were incomplete. I have therefore chosen not to take these particular conclusions into account. F. Was the Impugned Conduct Unwelcome? [253] The only conduct that I have found to be related to the Complainant's colour is the use of the nickname Kirby Puckett Ass. Cst. Haney testified that the Complainant did not show any outward signs that the name was unwelcome. On the contrary, he smiled and poked fun back at the coach by calling him Dumbo. Cst. Carr testified that he witnessed the Complainant use the nickname himself, in an exchange of electronic communications with Cst. St-Fleur. In explaining the name to Cst. Carr, the Complainant did not convey taking offence to its usage. [254] Cst. Haney testified that had he been told by the Complainant that he was offended by the name, he would have immediately stopped. Constable Christine Briand, who is a francophone, testified that at one point in her career, someone called her Frenchie. She made her objections to the name known, and the usage immediately stopped. [255] The Complainant argues that given the asymmetrical nature of his relationship with his trainers, in whose hands his future with the RCMP rested, he had no choice but to refrain from outwardly displaying any disapproval to them. This is a satisfactory explanation in the circumstances. It is reasonable for an employee at an early stage in his career, particularly while on probation, to be reluctant to put his job at risk by protesting against the actions of his superior (see Bouvier v. Metro Express (1992), 17 C.H.R.R. D/313 at para. 65 (C.H.R.T.); Woiden v. Lynn (2002), 43 C.H.R.R. D/296 at para. 104 (C.H.R.T.)). [256] Cst. Haney claims that there was no racial or discriminatory motivation in his choice of the term - the Complainant argues the contrary. However, for the purposes of the harassment analysis, the nature of the term from the coach's perspective is irrelevant. The nickname must be judged against a different standard - that of a reasonable person. In my opinion, a reasonable person would understand that a black person is not likely to welcome a statement that can be interpreted as making fun of his posterior on racial grounds. G. Was the Impugned Conduct Serious or Repetitive Enough? [257] The evidence suggests that the term was used more than once. Cst. Haney testified that he said it no more than five times. The Complainant was not specific, stating that it was used repeatedly. However, I found his evidence uneven on this issue. While he made a point of stating that the nickname OBO was used continuously, throughout his RFT, and this was independently confirmed by numerous witnesses, a similar assertion was not made with regard to Kirby Puckett Ass. Aside from Cst. Carr's evidence referenced just above, no other witness testified to having observed the Complainant being called by this name. Having regard to all the circumstances, I am satisfied on the balance of probabilities that Cst. Haney used the term on a few occasions only, as indicated in his evidence, around the time of the incident that gave rise to its usage, in the fourth month of the Complainant's first RFT period. [258] Where the impugned conduct takes the form of racial slurs, jokes in bad taste, and stereotyping, it must be persistent and frequent in order to constitute harassment. An isolated racial slur, even one that is very harsh, will not by itself constitute harassment within the meaning of the Act (see Rampersadsingh, supra at para. 54; Dhanjal v. Air Canada (1996), 28 C.H.R.R. D/367, at para. 212). In the present case, I am not persuaded that a reasonable person would consider these five or so instances over a short period of time where the term was used, as being serious or repetitive enough to poison the work environment for the Complainant and constitute an impugned form of harassment under the Act. [259] I do not doubt for a moment that the Complainant genuinely felt uncomfortable in the workplace, and that he eventually dreaded the thought of going in to work with Cst. Haney, principally for fear of the criticism he would face. He very likely considered his work environment to be poisoned, but I am convinced that it was not on account of any harassment based on his colour. Rather, the training had not turned out as he had expected, the rapport with his trainer was poor, and he was not achieving the success that he had expected of himself. This was unfortunate, but I am satisfied that his colour was not a factor in what he was experiencing. H. Notification to the Employer [260] Even if the nickname Kirby Puckett Ass was found to constitute harassment, the Complainant did not notify his supervisors or any senior RCMP member of this allegedly offensive conduct. The RCMP had in place a comprehensive and extensive anti-harassment policy and infrastructure to deal with any matters that may arise. The policy incorporated appropriate and wide-ranging redress mechanisms. However, in order to initiate this process, alleged victims had to make their disapproval known to offenders as soon as possible. If the problem was not resolved in this manner, victims were to report the harassment to their supervisors. If the alleged harasser was a supervisor, the reporting was made to the harasser's supervisor or the commander. The details regarding the policy were distributed and made available to all RCMP members, including recruits. [261] The only complaint of any sort made by the Complainant was to Cpl. Fischer during a Christmas party, in regard to Cst. Haney's alleged use of harsh training techniques. He did not make reference to any objectionable names or epithets. Notwithstanding the rather informal circumstances in which these concerns were conveyed, Cpl. Fischer followed up by speaking to his own supervisor, Sgt. Watts, as well as to Cst. Haney. As a result, the Complainant was given the opportunity to change trainers. He declined. [262] The Complainant could therefore have followed the same course of action to protest the use of the offensive term, Kirby Puckett Ass. He did not. Nor did he call upon the services of his DSRR sub-representative, Cpl. Allen. The Complainant asserted that he only learned of the services offered by the DSRR during the first extension of his RFT. Yet many of the RCMP members who testified confirmed that all members, including recruits, are made aware of the DSSR as soon as they arrive at the detachment. [263] In the particular circumstances of this case, given the absence of any notification to the employer of the harassment, the employer cannot be held responsible. [264] For all the above noted reasons, the Complainant's claim against the RCMP of discrimination in the form of harassment is unfounded. III. CONCLUSION [265] The Complaint has therefore not been substantiated and is dismissed. Signed by Athanasios D. Hadjis OTTAWA, Ontario October 14, 2005 PARTIES OF RECORD TRIBUNAL FILE: T739/4402 STYLE OF CAUSE: Jean-Luc Morin v. Attorney General of Canada DATE AND PLACE OF HEARING: June 17 to 20, 2003 (Montreal) June 24 to 27, 2003 (Montreal) October 20, 21, 23 & 24, 2003 (Montreal) November 3 to 6, 2003 (Vancouver) November 12 & 13, 2003 (Ottawa) November 17 to 21, 2003 (Ottawa ) November 24 to 28, 2003 (Ottawa ) December 5, 2003 (Ottawa) February 16 to 20, 2004 (Ottawa) February 23 to 26, 2004 (Ottawa) April 6, 2004 (Ottawa) May 3 to 5, 2004 (Ottawa) May 10 to 11, 2004 (Ottawa) May 25 to 27, 2004 (Montreal) July 13, 2004 (Ottawa) October 18, 19 & 21, 2004 (Montreal) October 25, 2004 (Ottawa) DECISION OF THE TRIBUNAL DATED: APPEARANCES: October 14, 2005 Ian Abugov For the Complainant Andrea Wright For the Canadian Human Rights Commission (June 17, 2003 only) Alain Préfontaine Catherine Lawrence For the Respondent

2005 CHRT 42

CHRT

Gaucher v. Canadian Armed Forces

en

2005-10-20

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7146/index.do

2023-12-01

Gaucher v. Canadian Armed Forces Collection Canadian Human Rights Tribunal Date 2005-10-20 Neutral citation 2005 CHRT 42 File number(s) T903/2304 Decision-maker(s) Jensen, Karen A. Decision type Decision Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE ALETA GAUCHER Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADIAN ARMED FORCES Respondent RULING MEMBER: Karen A. Jensen 2005 CHRT 42 2005/10/20 [1] On June 16, 1998, Aleta Gaucher filed a complaint with the Canadian Human Rights Commission alleging that the Canadian Armed Forces discriminated against her on the basis of sex, race, national or ethnic origin, marital status, family status and age by failing to promote her and by refusing to continue to employ her. [2] The Commission referred the complaint to the Canadian Human Rights Tribunal for further inquiry on February 26, 2004. [3] On January 13, 2005, the Tribunal granted the Commission's motion to amend the complaint to include allegations that, contrary to section 10 of the Canadian Human Rights Act, the Canadian Forces engaged in discriminatory policies and practices relating to retention and promotion which have had an adverse impact on women, aboriginal women and single mothers. [4] The parties have run into difficulties with the disclosure of documents in preparation for the hearing of this matter. Although some disclosure has already taken place, the Commission and Ms. Gaucher are not satisfied with the extent of that disclosure. They have each brought a motion for additional disclosure, arguing that they need more documentation from the Canadian Forces in order to prepare their case. I. BACKGROUND [5] Ms. Gaucher enrolled in the Canadian Forces in February 1975 as a Military Police Officer. She was promoted from Private to Corporal in the Military Police in 1979. She became eligible for promotion to Master Corporal in 1981. In January, 1988, Ms. Gaucher transferred to another trade and became eligible for promotion again from 1990 to 1996. In 1996 she retired from the Canadian Forces. [6] The promotion system in the Canadian Forces is complex. For the purposes of this motion, it is sufficient to note the evidence of the Canadian Forces' witness that, during the relevant periods of time, all members who were eligible for promotion were first evaluated and scored by their unit on the basis of certain documents in their personnel file. Together with other documents in the file, the score was sent to National Headquarters in Ottawa where a Merit Board file for each candidate would be assembled. The Merit Board file is a package of documents including performance reports, course reports, personnel record, resumes and letters of commendation. [7] A body known as the Merit Board then assessed the candidates for promotion on the basis of their Merit Board files. At the conclusion of their consideration of eligible candidates in a given year, the Merit Board issued a Board Report which explained, to some extent, the process that was followed in developing the Merit List. The Board also issued a Merit List which ranked the candidates in order of their suitability for promotion. A. The Motions [8] In its motion, the Canadian Human Rights Commission is requesting an order for: (1) All documentation relevant to the Merit Board Selection process for all of the years that Ms. Gaucher was eligible to be promoted, including but not limited to: the Merit Board Reports; the Merit Board Personnel Record Resumes (MPRR's) for all candidates that ranked ahead of Ms. Gaucher; and, the Personnel Records for the relevant time period for all successful candidates in each year. (2) All documentation concerning the Canadian Forces' practices and policies in connection with the hiring and retention of Aboriginal members. [9] In her motion, Ms. Gaucher is requesting an order for: the full and complete personnel files for five named individuals who received promotions and who were allegedly no more qualified than Ms. Gaucher; the coordinates of the witnesses that Ms. Gaucher's intends to call during the hearing. II. Law and Analysis [10] The appropriate test regarding the disclosure of documents is whether the document is arguably relevant. In order for the document to be relevant there must be some nexus between the documents and a fact in issue (Guay v. Royal Canadian Mounted Police 2004 CHRT 34 at para 42). [11] The threshold for arguable relevance is low and the tendency is now towards more, not less disclosure (Communications, Energy & Paperworkers Union, Femmes-Action v. Bell Canada, Interim Ruling No. 2 dated February 9, 2000, File No. T503/2098; Neusch v. Ontario (Ministry of Transportation) [2002] O.H.R.B.I.D. No. 11 at paras 72 and 73). Nonetheless, it is important that the disclosure request not amount to a fishing expedition. (CEP v. Bell, supra). [12] With these principles in mind I will turn to an examination of each of the requests for disclosure. (1) All documentation relevant to the Merit Board Selection process for all of the years that Ms. Gaucher was eligible to be promoted (i) Merit Board Reports and Merit Lists [13] The Merit Board Reports and Merit Lists for all of the periods during which Ms. Gaucher was eligible for promotion are clearly relevant to the present inquiry. They provide an indication of where Ms. Gaucher ranked on the list that was used to make promotion decisions as well as the process that was involved in selecting candidates for promotion. [14] The Canadian Forces state that they will disclose the Merit Board Reports and Merit Lists for the period from 1993 to 1996. However, according to the Canadian Forces' witness, Lieutenant-Commander Tracey Lonsdale, Board Reports and Merit Lists are not available for the promotion period of 1981 to 1988 and the year 1990. It was not clear from the record as to whether the Reports and List are available from 1991 to 1993. [15] If the Merit Board Reports and Lists are available for the period 1991 to 1993 and have not been disclosed, I order the Canadian Forces to disclose them. [16] During the hearing on the motion, counsel for the Commission and counsel for Ms. Gaucher argued that it might be possible to reconstruct the Merit Lists and Merit Board Reports for the years from 1981 to 1988 and 1990 using existing documentation in personnel files (which is kept for a much longer time) and other information from Canadian Forces personnel. The Canadian Forces indicated that this would be very difficult, if not impossible to do. [17] I am not going to require the Canadian Forces to reconstruct the Merit Lists and Merit Board Reports that are no longer in their possession. Rule 6(3) of the Tribunal's Interim Rules of Procedure stipulates that a party shall provide copies of the documents in its possession. The plain meaning of the words in its possession suggests that parties are not required to create documents for disclosure. Indeed, this is how the British Columbia Human Rights Tribunal has interpreted similar provisions in its Rules. (See, for example: Auchoybaur v. Walcan Seafood Ltd. 2005 BCHRT 35 at para 13) (ii) The Merit Board Files and The Personnel Files [18] During the hearing, counsel for the Commission stated that while he was not relinquishing his request for the Merit Board files for all of the candidates that ranked ahead of Ms. Gaucher, he was prepared to accept an order for the disclosure of the Merit Board files for only those candidates who were promoted during the relevant time period. [19] Counsel for the Commission suggested that this disclosure might be satisfactory and if not, he would renew his request for disclosure of the Merit Board files for all candidates that ranked ahead of Ms. Gaucher during the relevant time period. To be clear, counsel for the Commission also indicated that he was not going to insist on the disclosure of the entire personnel file for the successful candidates. [20] There are apparently some eighty-three (83) individuals who received a promotion during the period from 1991 to 1996. Counsel for the Canadian Forces argued that only the file of the candidate that was last to be promoted each year could be potentially relevant. [21] I disagree. In my view, the relevance of the Merit Board files for all of the candidates that were promoted ahead of Ms. Gaucher relates both to the individual and systemic portions of her complaint. [22] Firstly, in a case dealing with age discrimination in the Canadian Forces' promotion process, this Tribunal has stated that the documents that are used to assess the merit of all persons against whom the complainant was rated are clearly relevant (Morris v. Canada (Canadian Armed Forces) [2001] C.H.R.D. No. 41 at 129, aff'd 2005 FCA 154). This is because they constitute the means by which the complainant and the Commission normally attempt to establish a prima facie case of discrimination. Although in Morris, the Tribunal ultimately found that the documents were not necessary for the Commission and the complainant to make out a prima facie case of discrimination; this does not negate the relevance of the documents in the Merit Board files. [23] Furthermore, the Merit Board files of all of the successful candidates are clearly relevant to the respondent's explanations as to why the complainant was not promoted. [24] Finally, the relevance of the Merit Board Reports also lies in their potential to reveal practices or policies that contravene section 10 of the Act. The respondent argues that the Commission and Ms. Gaucher have not been clear enough about the practices and policies to which they are referring. However, the Canadian Forces themselves have stated in their Statement of Particulars, that they have taken all reasonable steps to eliminate discrimination in their hiring, promotion and retention policies and practices. Therefore, the Canadian Force's own references to policies and practices that may have been discriminatory provide the nexus between the requested documents and the facts in issue. [25] The Canadian Forces argue that the inconvenience associated with the production of the Merit Board files outweighs the utility of the documents in the tribunal hearing process. Again, I disagree. The importance of providing all parties with full disclosure has been underscored by numerous courts and tribunals (See for example: Ontario (Human Rights Commission) v. Dofasco Inc. (2001), 57 O.R. (3d) 693 (Ont.C.A.) and Neusch v. Ontario (Ministry of Transportation) [2002] O.H.R.B.I.D. No. 11). [26] Furthermore, in her Affidavit, the Canadian Forces' witness stated that it would take approximately two to three months to produce the personnel records for the approximately 500 individuals who ranked ahead of Ms. Gaucher on the Merit Lists. However, in cross-examination she admitted that it would take less time to produce the Merit Board files for the eighty-three individuals who were promoted between 1991 and 1996. Therefore, a request to produce these records would not, in my view, be unduly burdensome. [27] There is the remaining problem of the disclosure of files for the periods during which neither Merit Lists nor Merit Board Reports are available from 1981 to 1988 and 1990. I reiterate the point that I made above: the Canadian Forces should continue to use their best efforts to locate and disclose documentation relating to members that were promoted in Ms. Gaucher's occupational groups during the relevant time periods. (2) All documentation concerning the Canadian Forces' practices and policies in connection with hiring and retention of Aboriginal members. [28] In their submissions in response to the motion, the Canadian Forces stated that they would amend their Statement of Particulars to disclose and produce additional material regarding the hiring and retention of Aboriginal members. No other issues were raised on this point. I would, therefore, simply remind the Canadian Forces of their ongoing obligation to disclose any documentation related to this issue and, more particularly, documentation that relates to the point they have raised in paragraph 1 (n) of their Statement of Particulars. III. ORDER A. Order with Respect to the Commission's Motion To the extent that they have not already done so, and to the extent that they are still available, the Canadian Forces are ordered to disclose the Merit Lists and Merit Board Reports relevant to Ms. Gaucher's ranking for promotion for 1991 to 1996. The Canadian Forces are ordered to use their best efforts to locate and disclose documentation relating to the Merit Board selection process for all remaining years that Ms. Gaucher was eligible for promotion. The Canadian Forces are ordered to disclose the Merit Board files for all of the candidates on the Merit Lists who were promoted during the period 1991 to 1996. The Canadian Forces are ordered to use their best efforts to locate and disclose all documentation relating to members that were promoted in Ms. Gaucher's occupational groups during the period 1981 to 1988 and in 1990. The Canadian Forces are ordered to use their best efforts to locate and disclose documentation related to the hiring and retention of Aboriginal members and more particularly, documentation which relates to the point they have raised in paragraph 1 (n) of their Statement of Particulars. B. The Complainant's Motion [29] Ms. Gaucher has requested disclosure of the full and complete personnel files for five named individuals whom she alleges were promoted in spite of being no better qualified than her. The Canadian Forces have disclosed the Merit Board files for four of the five individuals named in Ms. Gaucher's Statement of Particulars. [30] The Canadian Forces argue that, in making promotion decisions, the Merit Boards do not review the entire personnel file, only the documents contained in the Merit Board file. Therefore, they argue, only the Merit Board files are relevant to the promotion issue. [31] However, the cross-examination of the Canadian Forces' witness revealed that the Performance Evaluation Reports, which are included in the personnel file but not the Merit Board file, are completed by the candidate's immediate supervisor and then scored. The score is sent on to the Merit Board. Therefore, in my view, this document is arguably relevant and must be disclosed for each of the named individuals. There is also some indication that other parts of the members' personnel files are considered in the preparation of the documents for the Merit Board files. For these reasons, I order that the entire personnel file for the named individuals be disclosed. [32] In spite of its best efforts, the Canadian Forces have been unable to locate the file for the fifth person. Counsel for Ms. Gaucher has stated that he will explore alternate spellings and names with Ms. Gaucher. This seems to be the best that can be done in the situation. The Canadian Forces are to continue to work with counsel for Ms. Gaucher to determine if the personnel file for this individual can be located. [33] Ms. Gaucher has also requested the names and contact information for the witnesses that she intends to call. Counsel for the Canadian Forces undertook to provide Ms. Gaucher's counsel with an indication of which individuals on Ms. Gaucher's witness list are no longer members of the Canadian Forces. With this information, Ms. Gaucher's counsel will be in a better position to seek out the information he needs to make contact with those witnesses who are no longer members of the Canadian Forces. [34] In the event that Ms. Gaucher's counsel is unsuccessful in obtaining the information that he needs, he may provide letters to the potential witnesses in stamped and sealed envelopes to the Canadian Forces who will then mail the envelopes to the last-known addresses of those individuals who are no longer in the Canadian Forces. Of course, it is entirely up to the individuals whether they wish to respond to the communication or not. C. Order with Respect to the Complainant's Motion The Canadian Forces are ordered to disclose the personnel files for the named members whom Ms. Gaucher alleges were promoted although they were no better qualified than her. The Canadian Forces are ordered to continue to use their best efforts, in cooperation with counsel for Ms. Gaucher, to locate the personnel file for the fifth named individual. In the event that counsel for Ms. Gaucher is unsuccessful in making contact with those potential witnesses who are no longer members of the Canadian Forces, the Canadian Forces will forward stamped and sealed envelopes containing correspondence from Ms. Gaucher to the last-known addresses of the those individuals. D. Order with Respect to Confidentiality [35] In order to address the concerns regarding the confidentiality of the documents, I order the disclosure on the following conditions: The names and contact information of the individuals whose files are disclosed shall be whited out; The Commission and Ms. Gaucher shall not use the disclosed information for any purpose outside the hearing; Neither Ms. Gaucher nor the Commission shall disclose the documents or their contents to anyone other than their legal counsel; Additional copies shall not be made of the disclosed documents and they shall be returned to the Canadian Forces one week after the close of the hearing in this case. Signed by Karen A. Jensen OTTAWA, Ontario October 20, 2005 PARTIES OF RECORD TRIBUNAL FILE: T903/2304 STYLE OF CAUSE: Aleta Gaucher v. Canadian Armed Forces DATE AND PLACE OF HEARING: (PRELIMINARY MOTION) September 26, 2005 (via video conference between Ottawa and Edmonton) RULING OF THE TRIBUNAL DATED: October 20, 2005 APPEARANCES: Dennis Callihoo For the Complainant Giacomo Vigna For the Canadian Human Rights Commission Doreen Mueller For the Respondent

2005 CHRT 43

CHRT

Warman v. Warman

en

2005-11-17

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7144/index.do

2023-12-01

Warman v. Warman Collection Canadian Human Rights Tribunal Date 2005-11-17 Neutral citation 2005 CHRT 43 File number(s) T998/11804 Decision-maker(s) Groake, Paul Decision type Decision Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE DE LA PERSONNE RICHARD WARMAN Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - ELDON WARMAN Respondent RULING MEMBER: Dr. Paul Groarke 2005 CHRT 43 2005/11/17 [1] I have reviewed the submissions from the Complainant and the Commission. I naturally disagree with the suggestion that my request for further submissions on the application for a penalty under s. 54(1)(c) is untoward. [2] The Commission's statement that the constitutional issues under the subsection were never raised in the hearing neglects the rather obvious fact that the Respondent did not participate in the case. If the logic of the Complainant and Commission was correct, it would not be possible to consider any defences in the present case, since the Respondent was not there to raise them. [3] I am obliged to reject this line of argument, which would compromise the fairness of the process. The prosecution of a complaint regarding the communication of hate messages is different than an ordinary civil matter. A respondent does not give up his rights to a full airing of the issues, simply by failing to appear. If there is an obvious defence, the Tribunal has an obligation to canvass it. [4] I have no fault to find with the Commission. It needs to be said, however, that I was informed by the parties that the constitutional issues under section 54(1)(c) have been resolved. This is simply not the case. The issues that arise under the provision are pressing and need attention. [5] There is also the idea that a respondent who refuses to participate in the process must somehow notify the other parties of the constitutional issues in the case. This seems rather forced. I cannot see anything to prevent the delivery of constitutional notice after an issue has raised itself. It is the substance of the requirement that matters, not the form. [6] I nevertheless agree that it is best to deal with the constitutional issues in a hearing where the respondent is represented by counsel. This does not preclude a Tribunal from dealing with the matter in a case where the fairness of the process requires it. This is as much a matter of conscience as anything else. [7] There is no need to continue the discussion. The Complainant and the Commission have informed me that they wish to abandon their request for a penalty under the section. That is their choice to make. There are no outstanding issues and the case is closed. Signed by Dr. Paul Groarke OTTAWA, Ontario November 17, 2005 PARTIES OF RECORD TRIBUNAL FILE: T998/11804 STYLE OF CAUSE: Richard Warman v. Eldon Warman DATE AND PLACE OF HEARING: April 25, 26 and 27, 2005 May 26, 2005 Ottawa, Ontario RULING OF THE TRIBUNAL DATED: November 17, 2005 APPEARANCES: Richard Warman On his own behalf Valerie Phillips Monette Maillet For the Canadian Human Rights Commission Eldon Warman No one appeared for Eldon Warman

2005 CHRT 44

CHRT

Filgueira v. Garfield Container Transport Inc.

en

2005-11-18

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7148/index.do

2023-12-01

Filgueira v. Garfield Container Transport Inc. Collection Canadian Human Rights Tribunal Date 2005-11-18 Neutral citation 2005 CHRT 44 File number(s) T952/7204 Decision-maker(s) Groake, Paul Dr. Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE RONALDO FILGUEIRA Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - GARFIELD CONTAINER TRANSPORT INC. Respondent RULING MEMBER: Dr. Paul Groarke 2005 CHRT 44 2005/11/18 [1] The Respondent has moved for costs. The motion came very late in the inquiry process, some time after I had dismissed the complaint on a non-suit. There is probably an argument that the motion should have been made in the course of the hearing. I am nevertheless willing to put that aside, for the purposes of deciding the application. [2] The application is also complicated by the fact that the Respondent is seeking costs against the Canadian Human Rights Commission rather than the Complainant. This is in spite of the fact that the Commission did not participate in the hearing. I think the Respondent feels it is sufficient that the Commission is named as a party in the style of cause. The Commission has also filed a judicial review of my decision to dismiss the complaint. This would indicate that it remains a party to the action. [3] The exact status of the Commission in the inquiry is unclear to me. There is a more fundamental problem, however. The Respondent is relying on the fact that complaints under the Canadian Human Rights Act are referred to the Tribunal by the Human Rights Commission. It is the Commission and not the Complainant that decides whether a case will go forward. [4] The Respondent has at least implicitly submitted that the complaint should never have been referred: Garfield's counsel spent a significant amount of time in preparation for the said hearing before the Tribunal. Had the Commission effectively requested and/or reviewed Ronaldo's evidence prior to the commencement of the hearing, the Commission would have recognized Ronaldo's inability to substantiate any aspect of the aforesaid complaint. The Respondent subsequently sent a letter to the Commission, declaring that it would seek costs if the matter went to a hearing. [5] This is the wrong approach. Once a complaint has been referred to the Tribunal, the Commission cannot stop the process. The inquiry must proceed. If the Respondent was unhappy with the referral, it should have sought a review of the Commission's decision in the Federal Court. This is not a matter that comes within the jurisdiction of the Tribunal. [6] I have no knowledge of the evidence that was before the Commission. I think I am obliged, however, to proceed on the basis that the complaint was properly referred. The situation might be different if there was something that suggested an improper motive or an abuse of process. It is clear that the Tribunal has the authority to manage and protect the integrity of its own process. [7] That does not come into play in the situation before me. I think the matter should be dealt with in the Federal Court, which has supervisory jurisdiction over the Commission. The Respondent can always raise the issue on the review. [8] The motion is dismissed. signed by Dr. Paul Groarke OTTAWA, Ontario November 18, 2005 PARTIES OF RECORD TRIBUNAL FILE: T952/7204 STYLE OF CAUSE: Ronaldo Filgueira v. Garfield Container Transport Inc. RULING OF THE TRIBUNAL DATED: November 18, 2005 APPEARANCES: Daniel Pagowski On behalf of the Canadian Human Rights Commission Harvey Capp On behalf of the Respondent

2005 CHRT 45

CHRT

Montreuil v. Canadian Forces

en

2005-11-28

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7147/index.do

2023-12-01

Montreuil v. Canadian Forces Collection Canadian Human Rights Tribunal Date 2005-11-28 Neutral citation 2005 CHRT 45 File number(s) T1047/2805 Decision-maker(s) Jensen, Karen A. Decision type Decision Decision Content MICHELINE MONTREUIL Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADIAN FORCES Respondent RULING MEMBER: Karen A. Jensen 2005 CHRT 45 2005/11/28 [1] The Canadian Forces have submitted a motion to compel the disclosure of certain medical files of the complainant, Micheline Montreuil. [2] Ms. Montreuil filed a complaint against the Canadian Forces on December 17, 2002, alleging that the Forces discriminated against her on the basis of sex and perceived disability when they refused to allow her to re-enlist in the Canadian Forces. The Forces cited Ms. Montreuil's failure to meet the required medical conditions as the reason for their refusal. [3] Ms. Montreuil considers herself to be a transgendered person. She was born a man. However, at a certain point in time she began the medical process to become a woman. She did not complete this process. [4] Ms. Montreuil consulted with three physicians for the purpose of changing her sexual identity. Those physicians are Dr. Serge Ct, a psychiatrist, Dr. Roland Tremblay, an endocrinologist and Dr. Martine Lehoux, a dermatologist. The Canadian Forces now want Ms. Montreuil to disclose the medical files of these three physicians as well as the names and files of any other physicians that might have been involved in the sex change process. [5] Ms. Montreuil refuses to disclose the files of the three physicians because, she says, they are not relevant. She argues that the Canadian Forces are attempting to make a medical issue out of what is essentially a sociological question of fact and attitude regarding transgendered people. She argues that the medical process involved in changing her sexual identity is not in issue in this case. [6] However, it must be noted that Rule 6(1)(d) of the Tribunal's Rules of Procedure requires the disclosure of all documents that relate to a fact or issue in the case, including those facts and issues that have been identified by other parties. [7] The Canadian Forces maintain that Ms. Montreuil has medical conditions related to the sex change process and her sexual identity which prevent her from meeting the medical standards for enlistment. While Ms. Montreuil may not believe that there are any medical issues with regard to her sexual identity and the sex change process in this case, the Canadian Forces believe that there are. [8] As this Tribunal stated in Beaudry v. Attorney General of Canada [2002] C.H.R.D. No. 32 at para. 7 (Q.L.), the respondent must not be deprived of the right of access to all relevant information needed to present a complete defence to the complaint. The Canadian Forces have stated their intention to call an expert witness to testify about Ms. Montreuil's medical condition. The medical files relating to the sex change process will be of assistance to the Respondent's expert in assessing Ms. Montreuil's medical condition. [9] Ms. Montreuil has also taken issue with the scope of the disclosure request, arguing that it amounts to a fishing expedition. However, in my view, the scope of the disclosure is appropriately restricted; only those medical files dealing with Ms. Montreuil's involvement in the sex change process and her sexual identity are to be disclosed. According to the material filed on this motion, Ms. Montreuil's consultations with Doctors Ct, Tremblay and Lehoux were limited to the sex change process. Therefore, the disclosure of these doctors' files on Ms. Montreuil is unlikely to result in the disclosure of information that is unrelated to the issues in the complaint. [10] A point of clarification is needed here. The Canadian Forces have requested a subpoena duces tecum for the doctors' medical records. A subpoena duces tecum is an order compelling a person to appear for examination under oath and to bring with them certain documents. At the disclosure stage of the Tribunal's process, this is not necessary. All that is needed at this point is simply an order from the Tribunal that the documents must be disclosed. [11] Therefore, I order that the complete medical files of Micheline Montreuil (or Pierre Montreuil, as she was previously known) including clinical study notes, consultation reports, blood test results and any other laboratory or test results from the following physicians be disclosed: Dr. Serge Ct, M.D., psychiatrist, CSPQ, FRCP (C), Htel-Dieu du Sacr-Cur de Jsus de Qubec, avenue du Sacr-Cur, Qubec (Qubec) G1N 2W1; Dr. Roland R. Tremblay, D.Sc., M.D. Ph.D., endocrinologist, Centre hospitalier universitaire de Qubec, 2705, boulevard Laurier, Sainte-Foy (Qubec) G1V 4G2; Dr. Martine Lehoux, M.D. Centre Dermatologique du Qubec Mtropolitain, 2880, chemin des Quatre-Bourgeois, suite 101, Sainte-Foy (Qubec) G1V 4X7. [12] To protect Ms. Montreuil's right to confidentiality, the documents should be disclosed to counsel for the Canadian Forces and should not be disclosed to any other individuals without prior permission from the Tribunal and without notifying Ms. Montreuil. The documents may be consulted by medical experts retained by the Canadian Forces for the purposes of this litigation only and should not be used for any purpose outside of the present litigation. The documents must be returned when the legal file is closed. [13] In her response to the motion, Ms. Montreuil stated that she has not consulted with any other specialists concerning her transition from a man to a transgendered person prior to 1997. Therefore, it would not appear that any further disclosure of medical documentation regarding the sex change process is required beyond the medical files of the above-noted doctors. However, Ms. Montreuil is reminded that she has an ongoing obligation to disclose all existing documentation relating to the sex change process whether before or after 1997. [14] In response to the motion for disclosure, Ms. Montreuil indicated that from the ages 13 - 43 years, she was a transvestite in various different ways. The Canadian Forces, in reply, have stated that Ms. Montreuil's transvestitism is relevant to whether she had and continues to have a gender identity problem. Therefore, the Forces have requested the disclosure of all medical documentation dealing with Ms. Montreuil's transvestitism. [15] This issue may warrant further discussion. Therefore, I will provide the parties with an opportunity, if needed, to discuss the disclosure of such documentation, as well as other outstanding issues, during the next case management conference call. At that point I will, if necessary, issue a ruling. The parties will be contacted within a week of the date of this ruling to set up that conference call. Signed by Karen A. Jensen OTTAWA, Ontario November 28, 2005 PARTIES OF RECORD TRIBUNAL FILE: T1047/2805 STYLE OF CAUSE: Micheline Montreuil v. Canadian Forces November 28, 2005 RULING OF THE TRIBUNAL DATED: APPEARANCES: Micheline Montreuil On her own behalf Franois Lumbu For the Canadian Human Rights Commission Claude Morissette For the Respondent

2005 CHRT 46

CHRT

Hoyt v. Canadian National Railway

en

2005-12-06

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7140/index.do

2023-12-01

Hoyt v. Canadian National Railway Collection Canadian Human Rights Tribunal Date 2005-12-06 Neutral citation 2005 CHRT 46 File number(s) T1036/1705 Decision-maker(s) Jensen, Karen A. Decision type Decision Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE CATHERINE HOYT Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADIAN NATIONAL RAILWAY Respondent RULING MEMBER: Karen A. Jensen 2005 CHRT 46 2005/12/06 [1] The United Transportation Union has asked that it be granted interested party status in a complaint involving Catherine Hoyt and Canadian National Railway. The Complainant, Ms. Catherine Hoyt, has consented to the motion and the Respondent, Canadian National Railway, has indicated that it neither objects nor consents to the request. The Canadian Human Rights Commission did not participate in the motion. [2] Section 50 of the Canadian Human Rights Act gives the Tribunal wide discretion with respect to the granting of interested party status (Eyerley v. Seaspan International Ltd. [2000] C.H.R.D. No. 16 at para. 3 (Q.L.)). In deciding whether or not to grant interested party status in a particular case, the onus is on the Applicants to show how their expertise would be of assistance in the determination of the issues before the Tribunal (Nkwazi v. Canada (Correctional Service) [2000] C.H.R.D. No. 15 at para. 23 (Q.L.); Canadian Union of Public Employees (Airline Division) v. Canadian Airlines International Ltd., [2000] F.C.J. 220 (F.C.A.), at para. 12). [3] In its Statement of Particulars, CN has raised the issue of the Union's involvement in the efforts to accommodate Ms. Hoyt. In particular, CN alleges that the Union did not act cooperatively or reasonably with respect to Ms. Hoyt's accommodation. [4] The Union argues that it is in a better position than Ms. Hoyt to respond to these allegations since Ms. Hoyt did not hold a position in the Union and therefore, does not have direct knowledge of what went on between the Union and CN. The Union asserts that without its participation, the Tribunal will have an incomplete picture of the case. I accept that the Union's participation is necessary to gain a full understanding of the efforts that were made to accommodate Ms. Hoyt. [5] Would it be sufficient if the Union's representatives participated as witnesses in the hearing? I think not. Allegations have been made in this case which, if substantiated, may have an impact on the Union's interests. Therefore, in my view, the Union should be given an opportunity to address the question of its involvement in the accommodation efforts and any other issues where its interests may be affected. [6] For this reason, the Union will be granted interested party status, including the right to introduce evidence, examine and cross-examine witnesses and present argument on issues where its interests may be affected and on its involvement in the accommodation efforts. I would encourage the Union to consult on an on-going basis with counsel for Ms. Hoyt, in order to ensure that there is no duplication in their efforts. [7] The Union will provide a Statement of Particulars and full disclosure of the evidence that it seeks to adduce in accordance with Rule 6 of the Tribunal Rules. The disclosure must include the names of proposed witnesses and a short summary of the anticipated testimony of each witness. The Statement of Particulars will be filed and disclosure completed by January 27, 2006. The Respondent shall have until February 27, 2006 to file an amended Statement of Particulars and to disclose any responding evidence. [8] The Tribunal reserves the right to address any case management issues arising from this ruling. Signed by Karen A. Jensen OTTAWA, Ontario December 6, 2005 PARTIES OF RECORD TRIBUNAL FILE: T1036/1705 STYLE OF CAUSE: Catherine Hoyt v. Canadian National Railway December 6, 2005 RULING OF THE TRIBUNAL DATED: APPEARANCES: Leanne M. Chahley For the Complainant Ikram Warsame For the Canadian Human Rights Commission Joseph H. Hunder For the Respondent Michael Church For United Transportation Union - Proposed Interested Party

2005 CHRT 48

CHRT

Maillet v. Canada (Attorney General)

en

2005-12-21

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7142/index.do

2023-12-01

Maillet v. Canada (Attorney General) Collection Canadian Human Rights Tribunal Date 2005-12-21 Neutral citation 2005 CHRT 48 File number(s) T935/5504 Decision-maker(s) Hadjis, Athanasios Decision type Decision Decision Content CANADIAN HUMNAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE DANIEL MAILLET Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - ATTORNEY GENERAL OF CANADA (REPRESENTING THE ROYAL CANADIAN MOUNTED POLICE) Respondent DECISION MEMBER: Athanasios D. Hadjis 2005 CHRT 48 2005/12/21 I. THE COMPLAINT II. WHAT MUST THE COMPLAINANT PROVE TO SUBSTANTIATE HIS COMPLAINT? III. THE COMPLAINANT HAS ESTABLISHED A PRIMA FACIE CASE WITH RESPECT TO THE SECTIONS 7 AND 10 PORTIONS OF HIS COMPLAINT IV. THE RCMP'S ANSWER TO THE SECTION 7 COMPLAINT - WHY WAS THE COMPLAINANT NOT HIRED? A. Inconsistencies and discrepancies regarding the Complainant's use of drugs B. Inconsistencies and discrepancies regarding the Complainant's departure from the Dieppe Police Department C. The Complainant's failure to disclose his brother's criminal record V. ARE THE RCMP'S EXPLANATIONS REGARDING THE SECTION 7 COMPLAINT REASONABLE, OR ARE THEY MERELY A PRETEXT FOR DISCRIMINATION? A. Did the RCMP inquire into the Complainant's sexual orientation? B. Can the evidence of Mr. Desaulniers and Mr. McGraw be reconciled? C. What is the Complainant's theory for why his application was turned down? VI. THE RCMP'S ANSWER TO THE SECTION 10 COMPLAINT: THE ALLEGED POLICY OR PRACTICE DOES NOT EXIST VII. CONCLUSION - COMPLAINT DISMISSED I. THE COMPLAINT [1] In 2001, the Complainant applied to become a member of the Royal Canadian Mounted Police (RCMP) but, according to his human rights complaint, he was refused on discriminatory grounds, namely his perceived sexual orientation and his family status (his relationship with his brother). He alleged that this refusal was a breach of s. 7 of the Canadian Human Rights Act. The Complainant also alleged that the RCMP conducted an inquiry in connection with his prospective employment that implied the existence of a limitation, specification or preference based on his perceived sexual orientation, in violation of s. 8 of the Act. In addition, the Complainant alleged that the RCMP pursued a policy or practice of determining his sexual orientation that deprived or tended to deprive him of an employment opportunity, in breach of s. 10 of the Act. [2] The Complainant and the Respondent were represented by counsel at the hearing. The Canadian Human Rights Commission opted not to appear at the hearing. II. WHAT MUST THE COMPLAINANT PROVE TO SUBSTANTIATE HIS COMPLAINT? [3] A complainant has the initial burden of establishing a prima facie case of discrimination. The Supreme Court of Canada decision in Ontario Human Rights Commission v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536 at para. 28 (O'Malley) provides the basic guidance for what is required to make out a prima facie case. The Court states that a prima facie case is one that covers the allegations made and which, if the allegations are believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent. [4] Once the prima facie case is established, the onus then shifts to the respondent to provide a reasonable explanation demonstrating that the alleged discrimination did not occur as alleged or that the conduct was somehow non-discriminatory. If a reasonable explanation is given, it is up to the complainant to demonstrate that the explanation is merely a pretext for discrimination (Basi v. Canadian National Railway Company (No.1) (1988), 9 C.H.R.R. D/5029 at para. 38474 (C.H.R.T.)). [5] In order for the complaint to be substantiated, it is sufficient that discrimination be just one of the factors in the employer's decision (Holden v. Canadian National Railway Company (1991), 14 C.H.R.R. D/12 at para. 7 (F.C.A.)). The standard of proof in discrimination cases is the civil standard of the balance of probabilities. [6] Discrimination is not a practice that one should expect to see displayed overtly. A tribunal should therefore consider all circumstances in determining if there exists what has been described as the subtle scent of discrimination. In cases involving circumstantial evidence, an inference of discrimination may be drawn where the evidence offered in support of it renders such an inference more probable than the other possible inferences or hypotheses (Basi, supra at paras. 38486-7; see also Chopra v. Dept. of National Health and Welfare (2001), 40 C.H.R.R. D/396 (C.H.R.T.)). [7] In accordance with the principles set out above, and after having carefully considered all of the evidence and representations in this case, I have determined that the Complainant has established a prima facie case with respect to the s. 7 and s. 10 portions of his complaint. However, the RCMP has provided an explanation that is reasonable and not pretextual. I am therefore dismissing those portions of the complaint. [8] The Complainant did not advance any argument with respect to the s. 8 component of the complaint during the opening statement or during final submissions. The Complainant did not direct the Tribunal to any evidence that would support or relate to the s. 8 allegation. I can only assume that the Complainant has opted not to pursue this aspect of the complaint. In any event, it would be a breach of fairness and natural justice for the Tribunal itself to try to formulate arguments in support of this aspect of the complaint and then attempt to make findings thereon. The case for the s. 8 complaint must therefore be dismissed. III. THE COMPLAINANT HAS ESTABLISHED A PRIMA FACIE CASE WITH RESPECT TO THE SECTIONS 7 AND 10 PORTIONS OF HIS COMPLAINT [9] The Complainant is a native of New Brunswick. In November 1989, he graduated from the police science programme of the Atlantic Police Academy at Holland College in Charlottetown, P.E.I. In 1990, he began his police career by working as a part-time officer for the municipal forces of Shediac and Tracadie-Sheila, in New Brunswick. In June of the same year, he was hired by the police force of the city of Dieppe, New Brunswick, where he worked until 1993. He eventually re-joined the Tracadie-Sheila municipal police service, and in 1997, he moved on to the police department of the nearby city of Caraquet, on the Acadian Peninsula. [10] In the 1990's, in furtherance of the provincial government's policy for the development and implementation of uniform policing standards across New Brunswick, numerous municipal police forces were absorbed into the RCMP by special agreement. In December 2000, the Municipality of Caraquet approved the absorption of its police force into the RCMP, to take effect on November 1, 2001. [11] According to the absorption plan, the RCMP undertook to hire, insofar as possible the full time police officers of the Caraquet police department who possessed the necessary professional qualifications. In order to be hired by the RCMP, the Caraquet officers had to be interviewed and undergo medical and psychometric examinations. In addition, they had to clear a security and reliability check. In contrast to new recruits, they did not have to attend the RCMP's training facility in Regina, and were not required to pass fitness tests or write written exams. [12] The Complainant was confident that the RCMP would hire him. The absorption had been expected for several years, so he and most of his fellow officers at Caraquet had already undergone and passed their medical examinations by the year 2000. Although he had been asked at one point to redo his psychometric test, he was not informed of any difficulties with the ultimate results. Everything was proceeding as expected by the time he filed his formal application to become a member on March 2, 2001. [13] Numerous colleagues and supervisors from the police departments of Caraquet and the other municipalities where he had worked testified that he was a very competent police officer. He was honest, reliable, polite, good-humoured and well-liked. To this day, they would recommend him without reservation for employment with any policing organization, including the RCMP. Indeed, many of these witnesses had joined the RCMP after the absorption of their respective municipal forces and they asserted that the Complainant could perform the functions of an RCMP member without any difficulty. The RCMP's eventual refusal to hire him was as much of a surprise to them as it was to the Complainant himself. [14] On March 14, 2001, the Complainant was interviewed in Caraquet by RCMP member, Cst. Jean-Paul St-Laurent. At the time, Cst. St-Laurent was working within the RCMP's human resources office in Fredericton, as a Recruiting and Security Coordinator. He was charged with the duty of coordinating the security and reliability screening for all RCMP applicants, whether they were new recruits, or existing police officers who were working in police departments that were being absorbed. [15] Cst. St-Laurent's questions during the interview were varied, ranging from the Complainant's finances and hobbies to his friends and family, and the extent of his alcohol use if any. The meeting ended without the Complainant sensing any concern about his application. Cst. St-Laurent told him that in the next stage of the process, his interview answers would be verified, as part of his security and reliability screening. [16] Several weeks later, the RCMP assigned Joseph Yves Desaulniers to conduct some of the field investigation into the security and reliability of the Caraquet officers who had applied to join the RCMP. Mr. Desaulniers was a retired RCMP member whose services were regularly retained on contract to conduct these types of enquiries. At the request of the RCMP, the Complainant had provided the names of several acquaintances and colleagues as references. Mr. Desaulniers met with many of these individuals, including Rodrigue McGraw. [17] Mr. McGraw was an experienced officer with the Caraquet police force and had worked with the Complainant for about three years. Mr. McGraw had not passed the medical examination, which he and the other Caraquet officers had taken in advance of the absorption. In the knowledge that the RCMP would therefore not be hiring him, he had sought out and obtained employment with the provincial public service in advance of the absorption. When Mr. Desaulniers contacted him, he was already employed at his new job and was no longer working with the Complainant. [18] Mr. Desaulniers interviewed Mr. McGraw at the latter's office in Bathurst. They had a quick conversation lasting no more than 20 minutes. Mr. McGraw testified that the initial questioning was open-ended and related to what sort of person the Complainant generally was. Mr. Desaulniers then asked if the Complainant was homosexual. Mr. McGraw was taken aback and visibly upset with this question. Mr. Desaulniers explained that the matter had come up earlier in his investigation. He was not necessarily saying that the Complainant was homosexual; he was just asking. Mr. McGraw told the investigator that he would be surprised if the Complainant was homosexual. [19] Mr. McGraw claims that he was so upset with the questioning, he spoke about it to a colleague at his new workplace immediately after the meeting. He claims to have also raised the incident with Aubin Albert, who was the Chief of the Caraquet Police department at that time. Mr. Albert did not make mention of such a conversation in his testimony, however. Mr. McGraw only managed to tell the Complainant about the questioning on or about April 17, 2001. [20] One of the Complainant's other character references who was also interviewed by Mr. Desaulniers was Denis McLaughlin. He and the Complainant had worked together in the Tracadie-Sheila police department. Mr. McLauglin had successfully transferred into the RCMP upon the absorption of the Tracadie-Sheila police department in 1997. [21] Mr. McLaughlin testified that he was interviewed by Mr. Desaulniers about the Complainant. He told Mr. Desaulniers that in his opinion, the Complainant could perform the duties of an RCMP officer as well as any other member. However, he also testified that during the interview Mr. Desaulniers asked him a question regarding the Complainant's sexual orientation, although he could not recall exactly how the question was framed. Mr. McLaughlin was surprised to hear the question, and testified that his only answer was that he did not know and did not care if the Complainant was homosexual or not. [22] On May 8, 2001, Cst. St-Laurent called the Complainant to a meeting at the RCMP's offices in Caraquet. Cst. St-Laurent told the Complainant right away that he had bad news - the Complainant's application to the RCMP was being turned down. The Complainant asked why. Cst. St-Laurent explained that his file had been reviewed by high-ranking officers back at the Fredericton headquarters, and it was determined that due to several small items, he did not fit the image of an RCMP officer. The Complainant asked for specific reasons. He was told that his brother, who lived in British Colombia, had a criminal record for sexual assault, which played a role in the decision. The fact that the Complainant had previously applied to the RCMP in the late 1980's and had been refused was also a factor. His declared prior usage of marijuana and hashish also played a role. [23] During the meeting, the Complainant mentioned having heard that questions had been asked by the RCMP about whether he was a homosexual. According to the Complainant, Cst. St-Laurent replied that this subject was never on the table. [24] Despite Cst. St-Laurent's denial, and in light of Mr. McGraw's information about the questions posed by Mr. Desaulniers, the Complainant suspected that his perceived sexual orientation may have been a factor in the decision not to hire him. He therefore asked Mr. McGraw to sign a written statement setting out what had transpired during the latter's meeting with Mr. Desaulniers. The Complainant prepared a questionnaire in a typical question and answer format, with spaces provided for Mr. McGraw to write in his answers. Mr. McGraw filled out and signed the document on May 19, 2001. [25] Mr. McGraw attached a separate sheet to the questionnaire, on which he had recorded his recollection of the conversation in narrative form. I have included the following excerpts from the narrative, as they were written. Mr. McGraw refers therein to Denis Albert and Serge Losier, both of whom were persons whom the Complainant had identified in his application to the RCMP as character references. Mr. Desaulniers had already interviewed both of them prior to meeting up with Mr. McGraw: [TRANSLATION] On or about March 28, 2001, I received a phone call from Jean Yves Desaulniers, asking me if it would be possible to meet me in person. . . . The meeting took place between eleven o'clock and noon at my office. He said to me: do you personally know Daniel Maillet of the Caraquet Police well? I replied: I think so, yes. Q [Mr. Desaulniers]: What kind of guy is he [the Complainant]? A [Mr. McGraw]: A guy who keeps to himself. He lives in a house built in the woods in Caraquet. He minds his own business, hard working and polite. Q : What is he like at work? A : Everybody likes him. We really enjoy teasing him. It is as if he does not feel liked if we do not tease him. Q : Is it true that he is homosexual? A : What . . . What are you saying? Now, where is that story coming from? Q : Denis Albert, what does he have to do with Daniel? A : He's a friend. Q : Why are they called Daniel and Denise? A : That's a joke. Denis is far too macho to be queer. Q : He has an earring or a pin in his ear, something like that? A : I haven't noticed. Wow, but that's a serious accusation. Q : I am not saying that he is one. That's what I learned from my investigation. They are often together. Their Jeeps are almost the same. There is also another guy from Tracadie, over there, who is with them a lot. Is he a homo too, that one? A : I don't know him. I cannot swear that Daniel Maillet is not homo but I would be more surprised than anyone. Q : Why would he almost always go out in Tracadie and not in town and why with either Denis Albert or Losier from Tracadie? A : A few years back, Daniel Maillet fell madly in love with a girl [. . .] from Tracadie. I do not remember her name. He dated her for almost two years. He still loves her even if he tries to hide it and it shows. That's why he goes over there. May be he is hoping they will get back together. Q : Whether he is homosexual or not, it does not change anything. He only has to admit it and it's okay. [...] [26] The Complainant expected to get a written letter of refusal from the RCMP following his second meeting with Cst. St-Laurent, but as the weeks passed, none arrived. Aside from Mr. McGraw, who as mentioned earlier was not qualified for medical reasons, all the Complainant's fellow Caraquet police officers who had applied to join the RCMP were accepted. As the date for the handover of policing from Caraquet's force to the RCMP approached (November 1st, 2001), the Complainant decided to inform the media about what he perceived as the RCMP's discriminatory refusal to employ him. His case was reported on TV and radio, as well as in the written press. [27] On October 31, 2001, an article was published in the local newspaper, l'Acadie Nouvelle. The reporter, Sylvie Paulin-Grondin, interviewed the Complainant and several others for her column, including the non-commissioned officer in charge of operations at the RCMP's Caraquet detachment, Sgt. Michel Pagé. Prior to the absorption of the municipal force, the RCMP had already been operating a detachment based in Caraquet and serving the surrounding area. Sgt. Pagé was therefore acquainted with the members of the Caraquet police department, including the Complainant, and was involved in the absorption process. [28] To obtain this interview from Sgt. Pagé, Ms. Paulin-Grondin testified that she had left a message for him at his office. He called her back and she conducted the interview by telephone. She claims to have cited Sgt. Pagé verbatim in the article. Sgt. Pagé did not testify at the hearing. Sgt. Pagé was quoted as initially saying that he could not comment on the Complainant's case nor that of any other individual. He nonetheless went on to affirm that the Complainant's candidacy did not satisfy the RCMP's criteria. He added that all the applicants are treated equally - their medical condition, reputation, character, and finances are examined. However, he also made the following statement regarding candidates' sexual orientation: [TRANSLATION] But I can tell you that sexual orientation is not a criterion. The RCMP does not discriminate against a person who is gay, absolutely not! It could however create problems if the employer was not aware of it. Let us say that a person is gay and the employer is not aware of it. That could be a risk in terms of security. If a member of the RCMP has a given orientation and does not want his or her employer to know about it, he or she could be exposed to blackmail, extortion, extraction of information. This is speaking in general terms and not about a particular case. But we must comply with the Charter of Rights. That is very important. [29] After the publication of these remarks, neither Sgt. Pagé nor the RCMP contacted Ms. Paulin-Grondin to suggest that she had misunderstood or misinterpreted his statements. [30] On the same day that the article was published, a letter was sent from the RCMP to the Complainant formally advising him that his application was being dismissed. It was signed by Staff-Sergeant Joseph Rogers, non-commissioned officer in charge of recruitment (Senior Career Manager) for J Division (New Brunswick). He noted that in the Complainant's case, the RCMP decided that his evasive manner during the interview and the fact that he provided information that was later found to be inconsistent, raised issues regarding his integrity and honesty. [31] The following day, November 1, 2001, the Complainant wrote Staff-Sgt. Rogers back, complaining that he had never been told previously that he had been evasive during the interview nor that he had provided erroneous information. He was shocked by these new allegations and asked for more particulars. On November 22, 2001, Staff-Sgt. Rogers wrote back to the Complainant, advising him that the RCMP's decision had not changed and was final. His file had already been reviewed internally and a complete assessment had been made. [32] On December 21, 2001, the Complainant filed the present complaint with the Canadian Human Rights Commission. [33] In sum, the Complainant has led evidence that prior to being denied employment by the RCMP, questions were asked about his sexual orientation. Sgt. Pagé's subsequent remarks that an applicant's concealed sexual orientation would be of interest to the RCMP corroborates the Complainant's contention that his perceived sexual orientation was a factor in the RCMP's decision. In addition, the Complainant has led evidence of being told outright that his brother's criminal record was also a factor in the decision not to hire him. I am satisfied in the absence of an answer from the Respondent that if this evidence is believed, it is complete and sufficient to justify a finding of discrimination, pursuant to s. 7 of the Act, based on the Complainant's perceived sexual orientation and his family status. A prima facie case has been made out. [34] Similarly, if the evidence is believed, a prima facie case has been made out regarding the s. 10 component of the complaint. Mr. Desaulniers's questions relating to the Complainant's sexual orientation - coupled with Sgt. Pagé's remarks - and the ultimate rejection of the Complainant's candidacy, suggest, in the absence of a reasonable and non-pretextual explanation, that there was a policy in place to inquire into the Complainant's sexual orientation, which may have or tended to deprive the Complainant of an employment opportunity. IV. THE RCMP'S ANSWER TO THE SECTION 7 COMPLAINT - WHY WAS THE COMPLAINANT NOT HIRED? [35] The RCMP claims that neither the Complainant's perceived sexual orientation nor his relationship with a family member was in any way a factor in its decision not to accept his application for employment. He was refused for numerous other reasons, principally related to what was perceived as his lack of candour and honesty during his interview with Cst. St-Laurent. I have determined this explanation to be reasonable. Moreover, the Complainant has not demonstrated that the explanation was a pretext for otherwise discriminatory conduct. [36] The security and reliability screening interview is of high significance for the RCMP, which must ensure that a member's integrity is not in doubt. The interviewer is provided a form on which the questions to be asked to candidates are set out and the answers are recorded. The form is for the interviewers' use only - it is not shown to candidates. The form used by Cst. St-Laurent during the Complainant's interview was entered as an exhibit at the hearing. [37] In accordance with the form's instructions, Cst. St-Laurent told the Complainant from the outset that the RCMP would conduct a field investigation afterwards to verify everything he said during the interview. He therefore advised the Complainant to be honest, forthright and complete in his answers. Any deliberate attempt to lie or omit information would remove the candidate from further consideration for employment. [38] The RCMP claims that many of the Complainant's answers were, on subsequent verification, proven untrue or incomplete, calling into question his integrity and qualities as a police officer. [39] Cst. St-Laurent was not impressed with the Complainant's overall performance and conduct during the interview. He described the Complainant as very quiet and reticent in providing the information being sought. Most candidates are initially nervous but they eventually open up and freely engage in a discussion with the interviewer. Such was not the case with the Complainant. He was not talkative and answers often required prompting and probing on Cst. St-Laurent's part. Questions frequently needed to be repeated in order to extract a response. [40] There is a section at the end of the interview form where the interviewer writes his overall impression of the interviewee. Cst. St-Laurent wrote that the Complainant appeared to be very nervous, and that it was difficult to get straight answers to many of the questions; the Complainant could not remember or was unsure. [41] Cst. St-Laurent testified that these concerns about the Complainant's answers, combined with several contradictions that emerged during subsequent verifications (set out below), led Cst. St-Laurent to conclude that he could not recommend the Complainant's candidacy. Cst. St-Laurent documented these findings in a memorandum dated April 25, 2001, that he submitted to Staff-Sgt. Rogers, the Senior Career Manager. A. Inconsistencies and discrepancies regarding the Complainant's use of drugs [42] The security and reliability interview form contains a series of questions relating to drug usage. Candidates are asked whether they have ever been exposed to or used drugs. If so, they are to explain the type of drug, the frequency of its use, the dates it was first and last used, and the circumstances or motives that gave rise to its use. [43] The Complainant told Cst. St-Laurent that he had used cannabis and hashish. Cst. St-Laurent recorded on the form that each drug had been used twice, the circumstances being experimentation/social. As for the dates of usage, the answer indicated is don't know, it was long ago. The Complainant testified that Cst. St-Laurent insisted he be more specific but the stress of this line of questioning caused him to blank out, and he was unable to give any details. [44] Cst. St-Laurent also asked the Complainant to provide the names and addresses of his relatives, as required by the interview form. Many of his relatives live in the United States and he was consequently unable to give these particulars during the interview either. The Complainant explained that he would be able to come up with this information after the interview. Cst. St-Laurent agreed to let him send in these details by fax following the meeting. [45] Upon returning to his office at the Caraquet municipal police station later that day, the Complainant called his mother and obtained his relatives' contact information. He then prepared a two-page hand-written letter, which he sent by fax to Cst. St-Laurent. In it he set out these details, but also added, under the heading Section on Drugs two paragraphs specifying the two occasions on which he had used drugs. The first is listed as winter 1994, outside of a high school entrance, before entering a dance that was being held inside. The second occasion is indicated as being in the spring or summer of 1995, outside of a club named Cosmo, in Moncton. On each occasion, he states that he used marijuana and hashish. [46] The Complainant explained at the hearing that he had in fact used the drugs in 1984 and 1985, not 1994 and 1995. He did not realize the error in his faxed letter until a few days before his second meeting with Cst. St-Laurent on May 8, 2001. The Complainant made no attempt to inform Cst. St-Laurent of the error prior to that meeting. He brought the mistake to Cst. St-Laurent's attention during the meeting, but Cst. St-Laurent said that it was too late; the decision not to recommend his candidacy had already been made. [47] Cst. St-Laurent testified that he had indeed told the Complainant to fax in the addresses of the American relatives. It was understandable for the Complainant not to have readily recalled these details during the interview. However, Cst. St-Laurent was not impressed by the fact that the Complainant took this as an opportunity to complete or supplement some of his other interview answers. Cst. St-Laurent testified that the purpose of the interview is to test candidates' reliability and honesty, by verifying the accuracy of their answers. They are therefore expected to reply in full during the interview to all questions that are put to them, aside perhaps from questions requiring detailed answers, like a relative's address and phone number. [48] Furthermore, Cst. St-Laurent was surprised to see the Complainant declare that he had used drugs so recently, at a time when he had already begun his career as a police officer. He was also taken aback by the age that the Complainant would have been at the time of the reported drug usage, so much so that he inscribed a comment on his copy of the faxed document: 30 years old. Cst. St-Laurent did not interpret this illegal drug usage as mere experimentation by a young person. Cst. St-Laurent testified that the RCMP will generally not turn down candidates just because they may have tried out certain less serious drugs while in high school. However, more recent usage, even as experimentation, particularly at a time when the person has already entered the policing profession, is of much greater concern. Cst. St-Laurent also wondered why the Complainant was suddenly able to remember the exact years of usage, after having had such difficulty doing so during the interview. [49] Another of the questions asked of the Complainant during the security and reliability and screening interview was whether any police force, including the RCMP, had ever refused him employment. The Complainant replied that he had applied to join the RCMP in the mid-1980's, but was turned down at the interview stage because he had admitted trying drugs a few years earlier. [50] Cst. St-Laurent testified that he took all the information provided by the Complainant, at face value. The refusal for drug use in the 1980's, combined with the faxed declaration that he had used drugs in 1994 and 1995 implied more than mere experimentation. [51] As part of the verification process, Cst. St-Laurent contacted Staff-Sgt. Jacques Ouellette, the RCMP staffing officer who had interviewed the Complainant in the mid-1980's. Staff-Sgt. Ouellette had no specific recollection of the Complainant. However, he added that for him to have rejected an application on this ground, the declared drug use must have taken place on at least three or four occasions. [52] Cst. St-Laurent therefore became generally apprehensive with the level of discrepancies that were emerging regarding the Complainant's drug use. What began as an admission of drug usage on four occasions as a form of experimentation, which had occurred so long ago that the Complainant was unable to remember the actual circumstances, had now developed into a minimum of seven or eight occasions of usage, having taken place as recently as 1995, at a time when the Complainant was a police officer by profession. B. Inconsistencies and discrepancies regarding the Complainant's departure from the Dieppe Police Department [53] The Complainant's answers with respect to his employment at the Dieppe police department gave Cst. St-Laurent another cause for concern. The investigation conducted by the RCMP to verify the Complainant's interview answers revealed significant discrepancies. [54] In advance of the security and reliability screening interview, candidates must fill out a Personnel Security Clearance Questionnaire, which includes a series of questions regarding previous employment. If candidates have ever been dismissed from a position, they are required to give the name of their supervisor and a brief explanation of the reason for the dismissal. The Complainant indicated in his questionnaire that he had been dismissed from his employment with the Dieppe police department in 1993, after three years service. He explained that he had been suspended and dismissed for alleged errors in his work, following which he took his case to arbitration and resigned for money. [55] The Complainant elaborated on this incident during his interview with Cst. St-Laurent. The suspension related to an impaired driving case in which he was to testify. Unfortunately, he was ill with the flu on the day of the trial, and while waiting to take the stand, he had to step out of the courtroom to visit the restroom. It seems that the prosecutor was unable to locate the Complainant when his turn came to testify. For some reason, instead of asking for an adjournment, the Crown decided to withdraw the charges. [56] Dieppe's Chief of Police, Terry Rouse, later notified the Complainant that he would be suspended for seven days. The Complainant filed a grievance, but some time afterwards he was fired from the police department outright. He grieved the dismissal as well. On the day of the arbitration hearing, the employer was reticent to proceed, so it offered the Complainant $40,000 to leave the force, in final settlement of both grievances. The Complainant accepted the offer. He preferred this option over returning to a workplace where his activities would be constantly scrutinized. [57] The Complainant testified that Rouse was well-known within New Brunswick's policing community as being very strict in his dealings with his officers. He claims that he discussed this fact with Cst. St-Laurent, who knew of the Chief's reputation and agreed that this would probably explain the events that led to the Complainant's dismissal. [58] The Complainant had brought with him to the interview documents relating to the dismissal, and offered to show them to Cst. St-Laurent. The offer was turned down. The Complainant testified that he even offered to take a lie detector test in connection with his explanation of the Dieppe dismissal, if so requested. Cst. St-Laurent has no recollection of this offer. [59] Following the interview, Cst. St-Laurent wrote some personal remarks on the interview form. He noted that the Complainant's dismissal from the Dieppe police department and his other employment records would have to be examined closely. He added that there may be a performance issue that needed to be clarified and addressed. [60] Cst. St-Laurent asked Dale Mitton, a retired RCMP staff sergeant, to look into the Complainant's employment history with the Dieppe police department. That city's police service had by then also been absorbed into the RCMP, as part of the provincial amalgamation process. Chief Rouse, who had dismissed the Complainant, had died several years before, so Mr. Mitton met with the former Deputy Chief of Police, Alan Parker, who was now a member of the RCMP serving in Moncton. The Complainant had listed Mr. Parker in his questionnaire as one of his supervisors at Dieppe who could be contacted for additional information. [61] Mr. Parker told Mr. Mitton that while employed with the Dieppe police department, the Complainant had been a poor performer and did not meet the minimum standards of a junior constable. He did not complete his work on time and he never met his diary dates. He was slack in doing his work. Mr. Parker also told Mr. Mitton that the Complainant was suspended and later dismissed on account of his poor performance and his failure to meet minimum requirements. Mr. Parker confirmed that the Complainant had accepted a payout and resigned from the force. Mr. Parker also mentioned that a former Moncton municipal police officer, Paul Desroches, had once told him that the Complainant had been seen in the Cosmo night club in Moncton, drinking to excess and hanging around poor charactered people. He may even have been into drugs. [62] Mr. Mitton met Mr. Desroches to follow up on this information. Mr. Desroches recalled having received a call from a concerned citizen alleging that the Complainant had been seen in downtown Moncton night clubs keeping company with ill charactered ladies, engaging in drinking and driving, and using drugs. Mr. Desroches pointed out that he was unable to confirm the accuracy of the information - the citizen had withheld his name. Mr. Desroches simply passed on the information to Mr. Parker. [63] Neither Mr. Desroches nor Mr. Parker was a witness at the Tribunal hearing. Mr. Mitton testified and entered into evidence an investigation report that he had prepared and remitted to Cst. St-Laurent in late March 2001, in which these details about his conversations with Mr. Desroches and Mr. Parker were set out. [64] Mr. Mitton also visited Dieppe's City Hall, as part of his investigation. He obtained copies of the minutes of the municipal council's meetings relating to the Complainant's suspension, dismissal and grievances, which he also forwarded to Cst. St-Laurent. [65] The minutes of May 25, 1993, dealt extensively with the Complainant's suspension. Chief Rouse informed the council that the Complainant had been suspended with pay as a result of difficulties in his work performance since the completion of his six-month probationary period. The Chief stated that the Complainant did not meet his work requirements, referring to three or four incidents, one of which concerned the impaired driving trial, where the Chief claimed that the Complainant fell apart on the stand after direct questioning. The Chief added that the Complainant had problems responding to serious calls involving physical contacts. After some follow-up questioning, the council decided to support Chief Rouse in his decision to suspend the Complainant. [66] The minutes of the April 25, 1994, meeting of council relate to the agreement that had been negotiated with the Complainant, in settlement of his labour grievances. Some of the agreement terms are set out, including the Complainant's undertaking to withdraw his grievances and resign from the police department, in exchange for a sum of money. Chief Rouse is cited as having assured the council that the City had a tight case, but that it would cost more in legal fees to pursue the matter rather than settle on the negotiated terms. A resolution was therefore passed approving the settlement. [67] Mr. Mitten also obtained copies of the Complainant's employment and pay records from Dieppe City Hall. The City had provided the Complainant with two records of employment to enable him to apply for employment insurance benefits. The first was completed following his suspension and dismissal, and the second after the grievance settlement. Both forms contain a comment to the effect that the employee was not expected to return to his employment because he failed to meet [the] minimum requirements of the police department. [68] One of the Complainant's supervisors at the Dieppe police department was Robert Bastarache, who had later joined the RCMP as part of the absorption. At the time of the field investigation, Mr. Bastarache was stationed at the Bouctouche detachment of the RCMP. Cst. St-Laurent asked Pierre Quinn, a retired RCMP investigator, to interview Mr. Bastarache. According to Mr. Quinn, Mr. Bastarache stated that he had heard a lot of rumours concerning the Complainant but that they were just rumours. Mr. Bastarache did not want to elaborate. However, he pointed out that in supervising the Complainant, he found him lacking in experience and maturity. [69] Mr. Bastarache confirmed to Mr. Quinn that he never saw the Complainant take any drugs, come to work with a hangover, or display any other sign of substance abuse. He concluded his conversation with Mr. Quinn by stating that although the Complainant was proud to wear the uniform, he forgot [the] responsibility that went along with it. Mr. Bastarache identified the Complainant's lack of maturity as the reason for his lack of responsibility. [70] The results of Mr. Quinn's and Mr. Mitten's field investigations gave Cst. St-Laurent cause for concern. The information gathered suggested that the Complainant had performed poorly while working for the Dieppe police department and that he had failed to meet the minimum standards for a police officer. This in itself was a concern but Cst. St-Laurent was also troubled by the fact that the Complainant had not mentioned during the security and reliability screening interview that poor performance had been a factor in his suspension. Cst. St-Laurent began to perceive a significant discrepancy between the Complainant's description of the incidents leading to his departure from the Dieppe police department, and the picture being developed through the RCMP's investigation. [71] Even the Complainant's conduct outside of work was being called into question. Cst. St-Laurent recognized that some of the information was based on hearsay and rumour. The reliability of the information received from the anonymous concerned citizen had obviously not been established. However, in his opinion, the fact that the nightspot involved, the Cosmo Club, was where the Complainant had also admitted using drugs in the past corroborated this information to a certain extent. C. The Complainant's failure to disclose his brother's criminal record [72] As part of the security and reliability screening interview, Cst. St-Laurent was required to ask the Complainant whether a member of his immediate family or a close friend had ever been involved in any criminal activities. According to Cst. St-Laurent, the Complainant mentioned two of his character references. The Complainant testified at the hearing that both of these friends had once been caught and fined for fishing out of season, which was a statutory offence. In addition, one of these men had been involved in an altercation with a neighbour, resulting in assault charges being laid. He was later given an absolute discharge by the court. [73] After the interview, as part of the normal verification process, Cst. St-Laurent checked if any criminal activity had been registered regarding any of the Complainant's friends or family members, or any of the individuals whom the Complainant had provided as character references. Cst. St-Laurent conducted his search on the national computerized databank that is available to all police services, known as CPIC. [74] The search yielded a surprising result. One of the Complainant's brothers, who is about one and a half years younger than the Complainant, appeared on the Criminal Names Index (CNI), which apparently lists the names of individuals who have been charged and finger-printed in the past. The CNI report for the Complainant's brother stated that his files related to violence, theft, sex. The report cautioned, however, that this entry did not document a criminal record. Cst. St-Laurent therefore inquired further into the database, and learned that the Complainant's brother had been convicted in 1986 of a theft under $1,000, under the Criminal Code. There was also an indication that the brother had been charged with sexual assault in 1987, and assault in 1998. Both of these charges were laid in British Columbia, but they were subsequently stayed. [75] Again, Cst. St-Laurent found himself having doubts and concerns about the Complainant's openness and honesty. Why had he not mentioned his brother when he was asked to list the names of any immediate family members who had been involved in criminal activity? [76] The Complainant testified that at the time of the interview, he had no knowledge whatsoever of these charges and conviction. He had been estranged from his brother for many years and had little knowledge of his activities. He was aware that when his brother was a teenager and still living at home in New Brunswick, the police had questioned him one time about an alleged sexual assault. However, no charges were ever laid against him. The Complainant recalls having mentioned this latter incident to Cst. St-Laurent, but he could not affirm with certainty when he did so. [77] Cst. St-Laurent, on the other hand, does not recall the Complainant's ever having provided information regarding any of his brother's criminal activity, including the police questioning about the sexual assault in New Brunswick. No mention thereof is recorded anywhere on the form that Cst. St-Laurent was filling out during the interview. The names of the Complainant's two friends who committed fishing offences are, however, clearly identified in the section of the form designated for the listing of acquaintances involved in criminal activities. [78] Cst. St-Laurent acknowledged having remarked during the May 8th, 2001, meeting that the Complainant's failure to mention his brother's criminal activity was a factor in the decision not to recommend him for admission to the RCMP. Cst. St-Laurent reminded the Complainant that he had been advised at the start of the March 14th interview about the importance of not withholding any information being sought by the investigator. [79] Cst. St-Laurent testified that the RCMP does not have a practice of refusing candidates due to the criminal activities of their friends or relatives. Indeed, the RCMP did not dispute the Complainant's assertion that some of the police officers hired during the absorption process had close relatives with far more serious criminal records than that of the Complainant's brother. Cst. St-Laurent explained that if a friend or relative who is very close to an applicant is involved in serious criminal activity, the RCMP looks into the matter more closely to determine the extent of any influence that person may have over the applicant. However, this factor is not an automatic bar to entry. [80] In any event, Cst. St-Laurent testified that the brother's actual criminal activity was not the issue with respect to the Complainant. The concern was that he omitted or withheld important information during the interview, just as he had done with respect to his work experience with the Dieppe police department and to some extent, his drug use. It is noteworthy that in his memorandum to Staff-Sgt. Rogers, Cst. St-Laurent does not so much emphasize that the brother was engaged in criminal activity, but rather that the Complainant had failed to disclose that his brother had a CNI for violence, theft, and sex. For Cst. St-Laurent, this constituted yet another discrepancy that emerged during the verification process. V. ARE THE RCMP'S EXPLANATIONS REGARDING THE SECTION 7 COMPLAINT REASONABLE, OR ARE THEY MERELY A PRETEXT FOR DISCRIMINATION? [81] I find that the Respondent's explanations with respect to the s. 7 portion of the complaint are reasonable and not pretextual. [82] It is unfortunate that when the Complainant filed his complaint, he was not in possession of Cst. St-Laurent's April 25th, 2001, memorandum to his superior, Staff-Sgt. Rogers, explaining the reasons for which he did not recommend the Complainant as suitable for employment in the RCMP. It is evident from the memorandum that Cst. St-Laurent's decision was motivated by the discrepancies that had emerged following the verification of the Complainant's security and reliability interview answers. Staff-Sgt. Rogers testified that after reading the memorandum, he met with Cst. St-Laurent to discuss the findings. Staff-Sgt. Rogers was satisfied with Cst. St-Laurent's conclusions and endorsed them. Staff-Sgt. Rogers reiterated in his testimony the importance for a candidate to be brutally honest during the security and reliability screening interview. All candidates are told this. [83] According to the RCMP, its field investigation had revealed that the Complainant had not been brutally honest. The Complainant, however, claims that his answers during the interview were truthful, and he maintains that the information garnered subsequently by the investigators was incomplete and misleading, if not altogether wrong. For instance, the Complainant insists that his departure from the Dieppe police department was entirely voluntary, and made solely with the intention of avoiding any further interaction with Chief Rouse, with whom he and many of his fellow officers could not get along. Several witnesses agreed with the Complainant's assessment of the Chief, and the Chief's attitude towards his staff. The Complainant also takes issue with the fact that some of the information gathered in Dieppe was based on rumour and hearsay. He denies the veracity of any of those allegations. [84] The fact remains, however, that the information and material forwarded to Cst. St-Laurent by the two investigators assigned to this aspect of the inquiry suggested otherwise. They indicated that the Complainant had performed poorly, and that his dismissal for cause would have ultimately been proven justified before the labour arbitrator, had the city not settled the grievances in advance. As for the rumours, Cst. St-Laurent acknowledged that they were of minimal probative value, but the information was before him just the same. [85] Cst. St-Laurent had no way of knowing that the Complainant was estranged from his brother. The fact is, however, that his research on the CPIC data bank yielded information that he would have expected the Complainant to disclose. I am satisfied that Cst. St-Laurent developed a genuine concern about the Complainant's honesty in this regard. This explanation is reasonable and there is no evidence to suggest that it was a pretext for discrimination based on the Complainant's family status. [86] With respect to the drug use, it was on account of the Complainant's own omissions and errors that Cst. St-Laurent was led to believe that the usage extended up to 1995, when the Complainant was already a police officer by profession. This posed an obvious concern for the RCMP. The Complainant contends that the RCMP should have probed further. It should have somehow realized that the Complainant had provided the wrong dates. He argues that it did not make sense for a 30-year old man to have smoked hashish and cannabis outside a high school dance. Cst. St-Laurent should have realized this, called back the Complainant and asked for the correct date. [87] In my view, to make such an assertion defies reason. It was the Complainant who was applying to join the RCMP, and it was his duty to ensure that the answers and information he was providing to Cst. St-Laurent were accurate and complete. He cannot blame the RCMP for taking him at his word with respect to the years of his declared drug usage. This detail was not given verbally during the interview, when a misstatement could understandably occur. Rather, it was included in a document drafted by the Complainant in his own handwriting after the interview and sent by him to the RCMP from the fax machine in his office at the Caraquet police station. [88] The Complainant argued that some of the discrepancies do not in fact exist. He claims that all his answers were not accurately recorded by Cst. St-Laurent during the interview. For instance, he denies having stated that the amount and frequency of his alcohol use per week was at the level recorded by Cst. St-Laurent on the form. Cst. St-Laurent testified that he wrote down the answers given and that in any event, the level of alcohol use shown was acceptable and posed no obstacle to the Complainant's candidacy. [89] The Complainant acknowledged that many of the other parts of the questionnaire accurately reflected his answers. Cst. St-Laurent's notes regarding the Dieppe police department correspond to the explanation that the Complainant testified having given during the interview. The field investigation, however, presented a different story than that told by the Complainant. Similarly, on the issue of drug use, the discrepancy was not so much between the Complainant's interview answers and the entries on the questionnaire, but rather between his interview answers and the erroneous fax he sent later on. [90] Finally, it makes little sense for Cst. St-Laurent to have omitted to write down the name of the Complainant's brother as an acquaintance involved in criminal activity, if the Complainant had indeed disclosed what he knew about the police questioning of his brother while he was still living at home in New Brunswick. I find it implausible that Cst. St-Laurent would have recorded the names of two friends who had illegally fished and not the name of a brother who had been questioned about a sexual assault. The Complainant argued that this and the other claimed omissions were deliberate and part of a larger organized scheme to keep him out of the RCMP. As I explain later in this decision, the evidence does not support this allegation. [91] Complainant counsel argued strenuously that Cst. St-Laurent's entire testimony is untrustworthy because he initially testified that at the second meeting with the Complainant, the decision to refuse his transfer had not yet been made. Yet, later on in Cst. St-Laurent's cross-examination, it was revealed that his report to Staff-Sgt. Rogers had been presented and accepted by a senior management committee as of April 27, 2001, almost two weeks before the second meeting (May 8, 2001). [92] Cst. St-Laurent explained that there was no contradiction. Senior management of the RCMP's J Division met on April 27, 2001. The minutes of the meeting state that Cst. St-Laurent's investigation findings and his recommendation were produced, and that the Commanding Officer concurred with this recommendation. Cst. St-Laurent claims that the decision to reject the Complainant's transfer had not yet been formally finalized. Despite the Commanding Officer's endorsement of the recommendation, the Complainant's application could still in theory have been accepted. This scenario seems unlikely, but in my opinion, the so-called contradiction in Cst. St-Laurent's testimony, as put forth by the Complainant, has no bearing on the reliability of his evidence. [93] Irrespective of whether the final decision had or had not already been taken when Cst. St-Laurent met with the Complainant on May 8, 2001, the documentary evidence proves that the recommendation not to accept the Complainant's candidacy was based on the discrepancies that had emerged during his reliability and security check. These discrepancies raised questions about the Complainant's honesty, integrity, and performance. The RCMP concluded that the Complainant had not been honest in his interview, as demonstrated by his failure to mention any of his brother's criminal activity, and his merely partial disclosure of information regarding his employment history with the Dieppe police department and his drug usage. The RCMP also developed some general concerns about his qualifications as a police officer, arising from the information gathered that suggested he had performed poorly during his employment at Dieppe, as well as from his subsequent apparent admission of drug use at a relatively mature age, well after he had commenced his career in law enforcement. [94] These explanations are reasonable. A. Did the RCMP inquire into the Complainant's sexual orientation? [95] The Complainant contends that the RCMP's explanations are merely a pretext for the discrimination practiced against him. I have already addressed the issue as it relates to his brother. I find the RCMP's explanations reasonable and not pretextual. [96] With respect to the Complainant's claim of discrimination based on sexual orientation, the conversation that took place between Mr. Desaulniers and Mr. McGraw is obviously key. It is common ground between the parties that the Complainant's sexual orientation came up during their conversation. Mr. Desaulniers readily acknowledged that the topic was discussed, but he denies that the issue was raised by him in the manner set out by Mr. McGraw. [97] Cst. St-Laurent had contacted Mr. Desaulniers by telephone in late March 2001, to ask him to conduct field investigations into all of the Caraquet police officers who were seeking entry into the RCMP, not just those of the Complainant. He met with over 100 people in the Caraquet/Tracadie-Sheila area over the course of a week, consisting mainly of the candidates' character references, neighbours, and employers. He did not manage to get around to conducting any interviews with regard to the Complainant until late on Wednesday of that week. [98] During their initial telephone call, Cst. St-Laurent told Mr. Desaulniers that he had some concerns about the Complainant's candidacy, arising from the answers given during the security and reliability screening interview. Mr. Desaulniers recorded these concerns in his notebook, which was entered into evidence, and included the Complainant's use of drugs, as well as his possible release for cause from the Dieppe police department. [99] Before meeting with Mr. McGraw, Mr. Desaulniers interviewed several of the Complainant's friends and work associates. They uniformly made positive comments about the Complainant, stating that he was an honest, hard-working police officer and a good person overall. One of the friends whom Mr. Desaulniers interviewed was Denis Albert, an ambulance attendant who had met the Complainant about five years earlier, when the latter was working for the Tracadie police department. According to Mr. Desaulniers's notes, Mr. Albert said that he considered the Complainant to be like an older brother. They regularly went scuba diving together, hunted small game, and went off-roading in their jeeps. Mr. Albert told Mr. Desaulniers that he believed the Complainant was a good police officer who would also do well in the RCMP. [100] Mr. Desaulniers noticed that Mr. Albert's head was shaved bald and that he bore a tattoo on his arm. He testified that Mr. Albert left him with an impression. In the notes that he took during the interview, Mr. Desaulniers wrote: Bald head / tattoo Alternative lifestyle ???? Straightforward but something ???? [101] Mr. Albert testified at the hearing that he did indeed shave his head bald at the time, and that he has a tattoo on his arm that reflects the level he has attained in the martial art of jujitsu. He also wore a pin in his ear. He felt that Mr. Desaulniers was judging him visually from top to bottom during the interview, but he acknowledged that many people used to look at him differently due to his appearance, which he described as military. People were often reticent to speak to him as a result. [102] Mr. Desaulniers testified that by using the term alternative lifestyle, he meant to refer to someone who is different than others and outside societal norms - someone like Mr. Albert, who had a shaved head, wore tattoos and an ear pin. Mr. Desaulniers found Mr. Albert to be a curious person, but he also pointed out that his notes in this regard were personal. None of this information was passed on to Cst. St-Laurent. In Mr. Desaulniers's final report to Cst. St-Laurent, which was produced at the hearing, he simply set out the sports activities that Mr. Albert did with the Complainant, as well as his positive recommendation. Mr. Desaulniers wrote that Mr. Albert vouched for the Complainant. [103] Following the interview with Mr. Albert, Mr. Desaulniers met with Mr. McGraw. Contrary to the questionnaire that Mr. McGraw had filled out for the Complainant in which he stated that the meeting took place on March 28, 2001, Mr. Desaulniers's notebook documents the meeting as having taken place on April 6, 2001. Mr. Desaulniers testified that he followed the same methodology as in all of his interviews. He simply asked Mr. McGraw his opinion of the Complainant. Mr. McGraw said that he was an honest and good person. Mr. Desaulniers told Mr. McGraw that he had already spoken to several other character references, including the Complainant's friend, Denis Albert. Mr. Desaulniers added that Mr. Albert was not an easily forgettable person, considering his bald head, tattoos, and ear pin. [104] At this point, according to Mr. Desaulniers, Mr. McGraw interjected, Oh, you're talking about Denise and Daniel. Mr. Desaulniers did not understand this comment and asked what it meant. Mr. McGraw explained that certain unidentified persons, whom Mr. Desaulniers assumed were fellow Caraquet police officers, used to refer to the Complainant and Mr. Albert by that term. Mr. Desaulniers asked why. Was Denis Albert the Complainant's chum or boyfriend? Mr. Desaulniers recalls Mr. McGraw saying, Oh no, he's not that kind of guy, and then going on to speak for around a minute about the Complainant's girlfriend. Mr. Desaulniers cut off Mr. McGraw and told him that he was not interested in knowing if the Complainant was gay. [105] He then asked Mr. McGraw, as the Complainant's former supervisor, to give an opinion about the Complainant's performance on the job with the Caraquet police department. Mr. McGraw reiterated that the Complainant was a good worker who performed well. They then discussed what Mr. Desaulniers had perceived, during his own visit, as the isolated location of the Complainant's residence. Mr. McGraw stated that the Complainant lived a somewhat solitary life. This was a point that Chief Aubin had also mentioned during his interview. [106] The questioning eventually turned to the circumstances surrounding the Complainant's departure from the Dieppe police department. Mr. McGraw knew nothing about the incident and according to Mr. Desaulniers, this question seemed to shock him more than the discussion about Mr. Albert. On another note, Mr. McGraw mentioned during the interview that the Complainant had experienced some understandable difficulty dealing with the sudden death of his father a few years earlier. That was the extent of their conversation, which lasted about 15 minutes, according to Mr. Desaulniers. [107] Mr. Desaulniers testified that, just as he had done after all of the other interviews conducted in Caraquet, as soon as he returned to his car, he recorded a synopsis of the interview on his laptop computer. The entry with respect to Mr. McGraw was 11 lines long. There is no reference to sexual orientation. The concluding sentence is to the effect that Mr. McGraw made no derogatory remarks about the Complainant and that he vouched for him. These same notes were copied word-for-word into the report that Mr. Desaulniers later sent to Cst. St-Laurent. [108] The Complainant's sexual orientation is not mentioned anywhere in the report, which summarizes all of Mr. Desaulniers's interviews regarding the field investigation into the Complainant. All of the comments noted are positive, stating generally that the Complainant is both a good police officer and a good person overall. [109] Mr. Desaulniers filed an additional document at the hearing entitled Investigator's Comments regarding the Complainant, which had also been typed into his computer. Mr. Desaulniers insisted in his evidence that he never sent this note to Cst. St-Laurent, nor communicated its contents to him in any other way. It was simply a note that he consigned to his file. It states that although nothing of a negative nature surfaced during the field investigation, none of the persons interviewed offered what he termed strong support. He explained that this was his interpretation of the character references' comments, which all tended to say that the Complainant was a good and honest person, as well as a good worker. No one described the Complainant, however, in terms that Mr. Desaulniers would characterize as [TRANSLATION] extraordinary. [110] Mr. Desaulniers also pointed out in the note that the Complainant was a single individual living in a somewhat isolated home/cottage in the woods. He concluded his note by stating that all of these comments were just observations being noted for file purposes. He explained in his testimony that he had initially planned on including these observations with his report to Cst. St-Laurent, but in putting together the final version of the report, he decided that these comments were not necessary, so he did not attach them to the report. The electronic file containing the text just stayed on his computer's disk. B. Can the evidence of Mr. Desaulniers and Mr. McGraw be reconciled? [111] In my assessment, both Mr. McGraw and Mr. Desaulniers appeared honest and forthright in their evidence. I am mindful that Mr. McGraw is an acquaintance of the Complainant, and that, for medical reasons, he did not qualify to join the RCMP with his other Caraquet police department colleagues. Counsel for the Respondent suggested that he may therefore be biased against the RCMP. I am equally mindful that Mr. Desaulniers is a former RCMP officer. He confirmed in his testimony that RCMP policy forbids making inquiries into an applicant's sexual orientation, and acknowledged that any future field investigation assignments that he may receive from the RCMP may be put in jeopardy if it was established that he made such an inquiry in this case. [112] Bearing this in mind, can their evidence be reconciled? I believe it can. On the one hand, Mr. McGraw's recollection was based in large part on the questionnaire that he completed at the Complainant's request, over a month following the interview. Errors can occur with respect to one's recollection of events as time passes on. Thus, for instance, Mr. McGraw identified the date of his meeting in the questionnaire as being on March 28, 2001. I am satisfied, however, based on several documents in evidence, that the meeting occurred on April 6, 2001. On the other hand, Mr. Desaulniers recorded his recollection of the meeting on his laptop computer only minutes after the interview had ended. Those notes make no mention of any inquiry into the Complainant's sexual orientation. Of course, one would not ordinarily expect someone who has knowingly asked discriminatory questions to acknowledge such blameworthy conduct in his notes. [113] But, in any event, I do not find a large disparity between the two men's recollections of their conversation. Both witnesses testified that the Complainant's sexual orientation was discussed. Mr. McGraw wrote in his questionnaire that Mr. Desaulniers initiated the discussion by asking whether the Complainant was homosexual, followed by an inquiry as to why people called him and his friend Daniel and Denise. In the sequence of events presented by Mr. McGraw, this question came quite unexpectedly and seems entirely out of context. Although Mr. Desaulniers's recollection of the sequence of events was not formally put to Mr. McGraw for his reaction, it is significant that in cross examination, Mr. McGraw admitted that his questionnaire did not constitute a verbatim restatement of the conversation. He acknowledged that the questions and answers may have taken place in a different order. The questionnaire was a general recollection of what was said during the meeting. [114] In my view, Mr. Desaulniers's version of events makes much more sense and is consistent with the circumstances surrounding the field investigation. Mr. McGraw was the last person interviewed by Mr. Desaulniers that week. Mr. Desaulniers brought up the name of one of the persons he had just visited, Mr. Albert. Mr. McGraw then mentioned the collective nickname that had been given to the Complainant and Mr. Albert, Daniel and Denise. Mr. Desaulniers testified that he had not heard of the term before. Indeed, none of the other character references whom he had interviewed, all of whom were called by the Complainant to testify at the hearing, stated that they had discussed this term with Mr. Desaulniers. [115] Mr. Desaulniers acknowledges having asked in reply whether Mr. Albert was the Complainant's chum or boyfriend. This is a question that obviously relates to the Complainant's sexual orientation but I do not believe it to have been a calculated inquiry into this area. It is noteworthy that Mr. Desaulniers did not only interview Mr. McGraw about the Complainant, but also with respect to another male candidate from the Caraquet police department. Mr. McGraw admitted in his testimony that Mr. Desaulniers did not ask any questions regarding the other candidate's sexual orientation. I am convinced, in all of the circumstances, that Mr. McGraw's remark about the nickname Daniel and Denise prompted Mr. Desaulniers to ask his question in a spontaneous fashion, perhaps more out of ordinary curiosity than out of any duty on his part to inquire into the Complainant's sexual orientation for the purposes of his investigation. [116] In the end, irrespective of the manner in which the topic came up, both witnesses concur as to Mr. Desaulniers's final comment to the effect that the Complainant's sexual orientation did not make any difference with respect to his application to join the RCMP. [117] Most significantly, there is no evidence whatsoever to indicate or even imply that Mr. Desaulniers ever conveyed in any way information to Cst. St-Laurent about the Complainant's sexual orientation, presumed or actual. Indeed, both Mr. Desaulniers and Cst. St-Laurent testified that to this day, they have no idea what the Complainant's sexual orientation is. If anything, Mr. McGraw's reply to Mr. Desaulniers, in somewhat coarse language (he is too macho to be a queer), would have indicated to Mr. Desaulniers that the Complainant was not homosexual. [118] Mr. McGraw, of course, was not the only witness to claim that he was asked about the Complainant's sexual orientation. Mr. McLaughlin testified that he was asked a question in this regard as well. Mr. Desaulniers, in his evidence, stated adamantly that he had no recollection at all of having asked any such questions to Mr. McLaughlin. He had a clear recollection of the circumstances of the interview, which was conducted in the basement of Mr. McLaughlin's home. Mr. McLaughlin's son was present during their discussions. In addition, Mr. Desaulniers took copious handwritten notes during the interview. They reflect the same information that Mr. McLaughlin said he had provided, namely that the Complainant was a good employee who did good work, and that he had no derogatory remarks to make. The notes even accurately indicate the number of years that Mr. McLaughlin had worked as a police officer. There is no mention in them of any discussion about the Complainant's sexual orientation. As in the case of Mr. McGraw's comments, Mr. McLaughlin's positive recommendation of the Complainant's candidacy was carried over into the report that was later sent to Cst. St-Laurent. [119] There would therefore appear to be a clear contradiction between the testimonies of Mr. Desaulniers and Mr. McLaughlin. Considering all of the circumstances, on the balance of probabilities, I do not find Mr. McLaughlin's account of the conversation persuasive. First of all, his assertion emerged for the very first time near the end of his testimony at the hearing. Parties to Tribunal hearings are required by the Tribunal's Rules of Procedure to file a Statement of Particulars in advance of the hearing setting out, amongst other things, a list of all witnesses the party intends to call, together with a summary of their anticipated testimonies, commonly called a will-say statement. [120] Mr. McLaughlin's will-say statement indicated only that he would be testifying that he had worked with the Complainant as a police officer, and the Complainant had the qualifications and character to be a member of the RCMP. In fact, Mr. McLaughlin's will-say statement was no different than those of at least 10 other witnesses, who all basically testified that the Complainant was an individual of good character who would make a good RCMP officer. Mr. McGraw's will-say statement, on the other hand, was quite explicit. He would be testifying that he had been questioned by Mr. Desaulniers regarding the Complainant's sexual orientation. This turned out to be an accurate representation of his testimony. [121] The Commission's investigation report was filed in evidence at the hearing by the Complainant. Although the report elaborates extensively with regard to Mr. McGraw's assertions, there is no mention whatsoever of any similar assertions emanating from Mr. McLaughlin. In fact, the Commission investigator wrote that of the ten individuals who were interviewed by Mr. Desaulniers, and who agreed to speak to her about the case, all but Mr. McGraw stated that they were not asked about the Complainant's sexual orientation. The Commission investigator did not specify the names of all the persons to whom she had spoken, but Mr. Desaulniers's report to Cst. St-Laurent indicated that he had interviewed eight friends and work associates, as well as three neighbours. It is therefore very probable that Mr. McLaughlin was one of the ten persons she contacted. [122] It seems that even Complainant Counsel had no knowledge of Mr. McLaughlin's allegation prior to the hearing. Complainant Counsel informed the Tribunal during final arguments that he only learned this information at the hearing. In addition, although the Complainant's human rights complaint devotes a five-line paragraph to Mr. McGraw's allegations, there is no mention at all of Mr. McLaughlin's allegations. [123] I find it striking that this evidence, which could be considered as equally significant to the Complainant's case as Mr. McGraw's, arose for the first time at the hearing. This alone brings into question the credibility of this evidence, especially when it is juxtaposed against a credible denial by Mr. Desaulniers, which is supported by detailed contemporaneous notes and a clear recollection of the interview. [124] In any event, as I have already stated, there is ultimately no evidence whatsoever to indicate that Mr. Desaulniers gave any indication or comment to Cst. St-Laurent about the Complainant's sexual orientation, perceived or actual, or that the matter was ever discussed between them. I have not found any evidence, even circumstantial, to suggest otherwise. Mr. Desaulniers testified that his only verbal discussion with Cst. St-Laurent about the Complainant occurred during their initial telephone call. Afterwards, he was provided with an envelope containing photocopies of all the Caraquet applicants' questionnaires, which detailed the names of their family members, friends, and work associates who were to be contacted during the field investigation. [125] Mr. Desaulniers testified that he spoke to Sgt. Pagé during the Caraquet field investigation, but only in regard to another candidate, not the Complainant. After completing his investigation, he simply dropped off his reports at the RCMP office in Fredericton. He had no other communication with Cst. St-Laurent regarding the Complainant until months later, when Cst. St-Laurent called to tell him that the Complainant had filed a human rights complaint. Mr. Desaulniers was even surprised to learn that the Complainant had not been hired by the RCMP. He had just assumed that the Complainant's application had been accepted. C. What is the Complainant's theory for why his application was turned down? [126] In his final submissions, Complainant counsel presented a theory as to how and why he believes the Complainant was discriminated against in this case. [127] The story would begin with Sgt. Pagé. His remarks in the newspaper interview revealed that he did not want homosexual RCMP members at his detachment, due to the risk that they may be subjected to blackmail by criminal elements. Sgt. Pagé made his opinion known to Cst. St-Laurent before the security and reliability check had begun. Cst. St-Laurent, as a result of Sgt. Pagé's request, then deliberately proceeded to ensure that the Complainant's security and reliability check would be so negative, Staff-Sgt. Rogers would have no choice but to reject his candidacy. Cst. St-Laurent therefore inaccurately recorded some answers on the Complainant's security and reliability screening questionnaire sheet. To the same end, Cst. St-Laurent also refused to look at the Complainant's Dieppe file that he had brought with him to the meeting. [128] Following the meeting, in furtherance of Sgt. Pagé's request, Cst. St-Laurent deliberately did not call the Complainant back to ask him if the dates that he had provided regarding his drug use were incorrect. In addition, when briefing the field investigators assigned to look into the Complainant's Dieppe work experience, Cst. St-Laurent instructed them to seek out only negative and false information. It is argued that Cst. St-Laurent also told Mr. Desaulniers to inquire into the Complainant's sexual orientation, in furtherance always of the same objective - to keep the Complainant out of the RCMP. [129] The allegedly false and misrepresented information gathered by the investigators enabled Cst. St-Laurent to fulfill Sgt. Pagé's request, and exclude the Complainant from entry into the RCMP. [130] Upon consideration of the above, I have concluded that the facts do not support the Complainant's theory. There is no evidence whatsoever of Sgt. Pagé's ever speaking to Cst. St-Laurent about the Complainant. Nor, for that matter, is it apparent from the newspaper article that Sgt. Pagé objects to the admission of homosexuals into the RCMP. Sgt. Pagé was not called to testify by either party. [131] There are some obvious logical gaps in the theory. For instance, if Sgt. Pagé already thought the Complainant to be homosexual, and wanted him to be excluded from the RCMP, why would Mr. Desaulniers be instructed to ask Mr. McGraw about his sexual orientation? And if such a question was necessary, why was the question asked of Mr. McGraw (and allegedly Mr. McLaughlin), and not of any of the other character references interviewed (at least nine other persons)? [132] I have already pointed out that the Complainant's assertion that Cst. St-Laurent deliberately omitted anything from the questionnaire is groundless and that it defies logic for the Complainant to lay blame for the recording of erroneous dates of his drug use on anyone but himself. Any discrepancies were not so much between Cst. St-Laurent's notes and the Complainant's alleged answers, as they were between the answers and the field investigations. I am satisfied that all of the field investigators conducted themselves in good faith. They simply reported back what they heard and their testimonies, for that matter, were all credible. They were at times buttressed by independent documentary evidence, and they often contained positive accounts. In fact, with regard to Mr. Desaulniers, the person who is alleged to have inquired into the Complainant's sexual orientation, his report back to Cst. St-Laurent was the most positive of all the field investigation reports. [133] It is not necessary to address the Complainant's theory any further. It is not supported by the evidence, and it is therefore rejected. [134] For all the above reasons, I find the Respondent's explanations reasonable and not a pretext for discrimination. The s. 7 portion of the complaint is therefore dismissed. VI. THE RCMP'S ANSWER TO THE SECTION 10 COMPLAINT: THE ALLEGED POLICY OR PRACTICE DOES NOT EXIST [135] With regard to s. 10, the Complainant alleged in his complaint form that the RCMP pursued a policy or practice on a prohibited ground (his sexual orientation) that deprived or tended to deprive him of an employment opportunity. The evidence establishing a prima facie case with respect to this portion of the complaint consisted principally of Sgt. Pagé's remarks to the journalist and Mr. McGraw's account of what Mr. Desaulniers asked during the interview on April 6, 2001. [136] I have already determined earlier in this decision that the exchange that took place during the interview did not exactly follow the course presented by Mr. McGraw in his evidence. I have concluded that Mr. Desaulniers's questioning was more happenstance than a planned and orchestrated inquiry, and that it was Mr. McGraw's bringing up the nickname that initiated the discussion about sexual orientation. In addition, on the evidence, no information relating to the Complainant's sexual orientation was ever transmitted by Mr. Desaulniers to Cst. St-Laurent or anyone else at the RCMP. I therefore do not find that this evidence supports the Complainant's claim that there existed a practice or policy to inquire into his sexual orientation, which deprived or tended to deprive the Complainant of any employment opportunities on a prohibited ground. [137] The Tribunal heard evidence from Normand Goulet, an Inspector with the RCMP who is in charge of the RCMP's human resources office in Fredericton. He stated that the RCMP has no interest in knowing a candidate's sexual orientation. Field investigators are specifically instructed, in the training that they receive at the RCMP Academy in Regina, that they are not to ask questions regarding applicants' sexual orientation. [138] The Complainant argues that if no policy exists, why did Sgt. Pagé defend this so-called non-existent policy to the journalist? In addressing this submission, it is important to take specific note of what Sgt. Pagé is reported to have said. He reiterated that an applicant's sexual orientation is not a factor in the determination of whether to admit the person or not. However, if an RCMP member wanted to keep his sexual orientation secret, it could expose the person to blackmail or extortion. The officer's security, as well as the greater interests of the RCMP, may in that case be placed in jeopardy. Implicit in Sgt. Pagé's statement is the importance that the RCMP attaches to an applicant's being, as Staff-Sgt. Rogers said, brutally honest during the security and reliability screening interview. [139] Therefore, if indeed a policy or practice exists, it consists of asking prospective RCMP members if they have engaged in any activities that they have hidden from public knowledge, which could render them susceptible to blackmail or extortion. In fact, there is a question to this effect in the security and reliability interview form that was used by Cst. St-Laurent during his initial interview of the Complainant. [140] The Complainant did not advance any argument at any stage of his case, as to whether the RCMP's interest in generally ascertaining concealed information can adversely affect an applicant or class of applicants, based on their sexual orientation or another prohibited ground. The Complainant simply never made this an issue in the case. [141] Indeed, the Complainant barely made any argument whatsoever with regard to the s. 10 portion of the complaint. It was only after direct questioning from the Tribunal that Complainant counsel articulated the s. 10 allegation to some extent. He defined the scope of the alleged discriminatory practice as being the establishment by the RCMP of a policy and practice to ask about the sexual orientation of an applicant, and specifically the Complainant (pages 1841-1842 of the Official Transcript). Complainant counsel expressly excluded from the definition any reference to a class of applicants, and he did not refer to any policy or practice requiring applicants to generally disclose to the RCMP activities that they have hidden from public view. [142] In these circumstances, it would be inappropriate for the Tribunal to analyze whether this more general disclosure policy adversely affected an individual or a class of individuals on the basis of a prohibited ground. To do so would lead the Tribunal into an uncanvassed area that quite simply was never at issue between the parties to this case. This would be unfair to the parties and could give rise to a breach of natural justice. The Tribunal cannot deal with matters that were never placed before it, and that were not debated by the parties (see Bergeron v. Télébec Ltée., 2005 FC 879 at para. 63; Beauregard v. Canada Post, 2005 FC 1384 at paras. 26-27). [143] As I have already stated, I am persuaded by the Respondent's explanation that the short discussion at issue between Mr. McGraw and Mr. Desaulniers does not reveal the pursuit of a practice or a policy on the latter's part of inquiring into the Complainant's sexual orientation. The manner in which this question came up does not support the contention that it was posed in pursuit of a policy or practice, nor is there any evidence, for that matter, that the questioning deprived or tended to deprive the Complainant of an employment opportunity. As Sgt. Pagé's comments can at best only serve to imply the existence of a separate and significantly different policy, the legality of which has not been placed before me, there is no other evidence in this case to support the Complainant's contention. [144] The s. 10 portion of the complaint is therefore dismissed. VII. CONCLUSION - COMPLAINT DISMISSED [145] The Complainant testified that he is still working as a police officer for a small municipal force in New Brunswick. It is possible that the RCMP's assessment of the Complainant was flawed or incomplete, and that had his candidacy been accepted, he would have performed his functions and duties as an RCMP member competently. [146] Be that as it may, it is not the role of the Tribunal to adjudicate on the merits of an employer's recruitment decision, but rather to determine whether discrimination on the basis of a prohibited ground under the Act was a factor in that decision. I have concluded that the Complainant's sexual orientation and his family status were not factors in the decision to reject his candidacy. In addition, no policy or practice was either established or pursued that deprived or tended to deprive him of an employment opportunity. His complaint is therefore dismissed. Signed by Athanasios D. Hadjis OTTAWA, Ontario December 21, 2005 PARTIES OF RECORD TRIBUNAL FILE: T935/5504 STYLE OF CAUSE: Daniel Maillet v. Attorney General of Canada (representing the Royal Canadian MountedPolice) DATE AND PLACE OF HEARING: January 10 to 14, 2005 January 24 to 28, 2005 Bathurst, New Brunswick DECISION OF THE TRIBUNAL DATED: December 21, 2005 APPEARANCES: Charles LeBlanc For the Complainant Dominique Gallant Stacey Gerrard For the Respondent

2005 CHRT 5

CHRT

Milazzo v. Autocar Connaisseur Inc.

en

2005-01-28

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6507/index.do

2023-12-01

Milazzo v. Autocar Connaisseur Inc. Collection Canadian Human Rights Tribunal Date 2005-01-28 Neutral citation 2005 CHRT 5 File number(s) T713/1802 Decision-maker(s) Deschamps, Pierre; Doucet, Michel Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE SALVATORE MILAZZO Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - AUTOCAR CONNAISSEUR INC. Respondent - and - MOTOR COACH CANADA Interested Party DECISION ON THE POLICY ISSUE PANEL: Pierre Deschamps, Chair Michel Doucet, Member 2005 CHRT 5 2005/01/28 I. INTRODUCTION 1 II. THE MATTERS IN ISSUE 1 A. Safety-Sensitive Positions 1 B. Accommodation 4 III. CONCLUSIONS OF FACTS DURING FIRST HEARING 4 IV. THE DECISION 12 V. CONCLUSION 18 I. INTRODUCTION [1] In the Tribunal's Reasons for Decision, dated November 6, 2003 and found at 2003 CHRT 37, the following Orders were issued: Autocar Connaisseur take steps, in consultation with the Canadian Human Rights Commission, to formulate a policy that ensures that individuals who suffer from substance-related disabilities who test positive in employer-sponsored drug tests are accommodated to the point of undue hardship, in accordance with this decision. Within six months of this decision, the parties shall file with the Tribunal copies of Autocar Connaisseur's revised drug testing policy. If the parties are unable to agree with respect to any terms of the revised policy, the Tribunal retains jurisdiction to deal with any outstanding issues. [2] Although many attempts were made, both in writing and through meetings, the parties have been unable to reach a consensus on certain matters regarding the Respondent's policy dealing with drugs and alcohol testing. [3] The parties having arrived at an impasse, the Respondent, in accordance with the Tribunal's order, is now seeking the guidance of the Tribunal on two issues which deal first, with the definition of Safety-Sensitive Position and, second, with the question of accommodation. II. THE MATTERS IN ISSUE A. Safety-Sensitive Positions [4] The Respondent's proposed Alcohol and Drug Policy defines a Safety-Sensitive Position as a position in which individuals have a key and direct role in an operation where performance limitations due to substance use could result in a significant incident or accident causing fatalities or serious injury, significant property damage or significant environmental damage. For the purposes of this policy, employees who are required to operate a motor vehicle in the care or control of the company, either as part of their regular duties or from time to time are considered to hold a Safety-Sensitive Position. [5] In a letter dated March 15, 2004, the Commission commented as follows on this definition: With respect to the definition of safety sensitive, I note that this section has been modified somewhat, however the Commission would need assurances that Motor Coach Canada will not be subjecting mechanics who are under regular supervision to drug testing. I therefore suggest that the definition be further modified to state: employees who are required to operate a motor vehicle in the care or control of the company, either as part of their regular duties or from time to time, and are not under regular supervision, are considered to hold safety sensitive positions. [6] The Respondent disagreed with this suggestion, considering it ambiguous. In a letter, dated March 24, 2004, it responded: Insofar as the definition of Safety Sensitive Positions, our client is not prepared to accept the change proposed, because the entire point of including mechanics who, as part of their regular duties or from time to time, drive vehicles, is that the employer has a duty towards public safety and public interest. The addition proposed would nullify entirely the purpose of the inclusion because it is obvious that mechanics are under supervision when they are in our client's facility while it is also obvious that they are not under any supervision whatsoever when called upon to drive a vehicle. [7] The issue, according to the Respondent, is not whether mechanics, per se, should be tested but whether those mechanics who are commercial motor vehicle drivers and who, as part of their duties, are called upon to drive a commercial motor vehicle should be covered by the policy. [8] The Respondent is of the opinion that it is clearly within the Tribunal's jurisdiction to make a ruling on this issue because when a mechanic, duly authorized and licensed to drive a commercial vehicle, is driving a bus, he/she is a commercial motor vehicle driver and not a mechanic. It insists that it has no intention of including mechanics that are not commercial motor vehicle drivers to its Drug and Alcohol Testing Policy. [9] According to the Commission, the issue raised by the Respondent is whether or not the proposed Alcohol and Drug Testing Policy applies to employees other than commercial bus drivers; that is, employees who were not the subject matter of the Tribunal's initial hearing in this case. The Commission takes the position that this is an issue that cannot be determined by the Tribunal. [10] The Commission refers to paragraph 189 of the Tribunal's initial Reasons for Decision in which the Tribunal indicated: Before turning to the question of remedy, we wish to make a brief comment with respect to Autocar Connaisseur's new alcohol and drug testing policy. It will be recalled that this policy, which only came into force in March of this year, applies not just to bus drivers, but to bus mechanics as well. This policy is not the subject of Mr. Milazzo's complaint, and, in our view, we would be overstepping our jurisdiction if we were to extend the scope of our inquiry to include a consideration of the legality of testing mechanics. Accordingly, we make no finding regarding Autocar Connaisseur's new policy, and specifically with respect to the question of whether the testing of Autocar Connaisseur's bus mechanics is reasonably necessary. [11] The Tribunal further indicated that during the initial hearing very little time was spent by either of the parties on the question of testing mechanics. Consequently, the Commission asserts that the only guidance the Tribunal can provide to the parties in these circumstances is that they have come as far as they can and that they have not been able to agree on the scope of what constitutes a Safety-Sensitive Position. [12] The Commission further argues that mechanics are supervised during their entire workday other than when they take a bus on the road. The issue in this case is to try to find a way of systematically capturing those people who may represent a risk for the company. It was determined that when employees are unsupervised, they should be subjected to the Policy. While this is the case for the drivers, the Commission asserts that it is not the case for mechanics. In order to overcome this problem, the Commission suggested that the words and are not under regular supervision be added to the definition of Safety-Sensitive Position. B. Accommodation [13] The issue of accommodation still unresolved has to do with Part IX of the Respondent's Alcohol and Drug Policy entitled Consequences of a Policy Violation. The very last sentence of that section states Failure to meet these conditions, including a second violation of this policy, will result in termination of employment in accordance with the agreement. It is the Commission's position that the word will must be replaced in this sentence with the word may. According to the Commission, the stringent consequence imposed by the policy for a second violation for an addiction type disability completely ignores the law and the obligation of accommodation. [14] This issue also brought forward the matter of last chance agreements. These agreements involve the Respondent, the Union representing the employees and the employee who has tested positive and has gone through a rehabilitation process. According to this agreement, when an employee who has completed his rehabilitation program tests positive again, his/her job will be terminated without further accommodation. [15] The memorandum of settlement or last chance agreement provided as evidence at the hearing states, among other things: The Union and the Operator [employee] agree that it would be unreasonable for the Employer to further accommodate the Operator's performance beyond the accommodation provided in this settlement and that the Employer's duty to accommodate under the Canadian Human Rights Act has been satisfied. Paragraph 7 further adds, It is also agreed by the Union and the Operator that any further accommodation by the employer would be undue hardship under the Canadian Human Rights Act. III. CONCLUSIONS OF FACTS DURING FIRST HEARING [16] In order to better understand the conclusion of the Tribunal on the present issues, it is important to recall certain conclusions on the facts arrived at during the initial hearing: [20] Evidence with respect to the state of the motor coach industry was provided by James Devlin, and Brian Crowe. Mr. Devlin is the current President of Autocar Connaisseur. Mr. Crowe is the President of Motor Coach Canada, the trade association representing motor coach companies and motor coach tour operators in Canada. Motor Coach Canada represents approximately 95 bus operators and 115 tour operators - somewhere between 75% and 90% of the Canadian industry. [21] Motor coach companies generally have approximately 75% of their employees working as drivers. Fifteen or 20% of the employees are mechanics, and the remainder provide administrative services. Most Canadian companies are fairly small, family-run businesses. [22] The motor coach industry operates on an `on demand' basis. According to Mr. Crowe, a typical operator in the bus industry operates 24 hours a day, 7 days a week. As Mr. Crowe noted, the industry has to have services available when people want to move. This means that route patterns may be quite unpredictable: Mr. Crowe cites the example of travel to the United States, stating that a company may not go to the United States at all one month, and then make 20 U.S. trips the next month, because of customer demand. [23] According to Mr. Crowe, it is this ability to respond quickly to customer demand that is one of the strengths of the motor coach industry. [24] Mr. Crowe described the Canadian motor coach business as a `mature industry', meaning that there is little growth in this sector. Indeed, the industry is in decline. Mr. Crowe explained that charter bus companies in Canada have to compete against heavily subsidized transport providers such as the airlines and Via Rail. World events, such as the Gulf War, the September 11, 2001 attacks, the war in Iraq, the SARs epidemic and the outbreak of Mad Cow disease in western Canada have combined to greatly reduce the tourism business available to the motor coach industry. [25] The state of the market creates serious economic challenges for motor coach operators. Mr. Crowe explained that a motor coach costs $600,000.00. Charter rates in Canada now vary between $500 and $700 per day, meaning that bus companies operate on very thin margins. This has resulted in a number of company bankruptcies in the industry in recent years. [26] The motor coach industry in Canada is heavily regulated. Because Autocar Connaisseur operates out of the Province of Quebec, it is the regulatory environment in that Province that is germane to our inquiry. [27] An Act respecting owners and operators of heavy vehicles (Bill 430) came into force in Quebec in 1998, as a result of the tragedy at Les Éboulements - a bus accident that took some 40 lives. The Bill was designed to increase road safety, and introduced an administrative registration system for owners and operators of heavy equipment, including buses. Amongst other things, this regulatory scheme calls for on-going conduct reviews. The Quebec Transport Commission is authorized to impose administrative measures on operators who have been assigned conditional or unsatisfactory safety ratings. In particular, the Commission has the power to cancel the operating licences of companies who are found to have operated in an unsafe manner, effectively putting them out of business. As will be described further on in this decision, in 1999, Autocar Connaisseur was itself the subject of safety-related proceedings before the Transport Commission, and was at risk of losing its operating licence. [28] Amongst other safety measures implemented as a result of Bill 430, motor coach company registration forms require bus companies to advise whether the company has a plan in place to control the consumption of alcohol and drugs by bus drivers. [29] There are numerous other statutory obligations imposed on bus operators, including obligations under the Canada Labour Code, the federal Motor Vehicle Transport Act, 1987, and the Québec Civil Code. [30] Cross-border travel presents a particular challenge for bus operators, as operators providing services to the United States are also subject to American laws, including laws relating to drug testing. [...] [32] American law requires that bus drivers operating vehicles in the United States be subjected to pre-employment, random, post-accident and for-cause drug testing. The testing process is subject to strict regulation, and there are stringent protocols in place regarding the collection and analysis of samples. [33] Several witnesses testified that the use of drug testing in the transportation industry was introduced as a part of the American War on Drugs. Whatever the reasons for the enactment of the legislation, as of July 1, 1996, commercial motor vehicle operators driving in the United States are subject to Federal Department of Transportation Alcohol and Drug Testing Regulations. This legislation also applies to Canadian companies driving in the United States, as well as to any Canadian driver who has the reasonable potential for crossing the border. According to Ms. Butler [qualified as an expert in policy development and implementation for issues relating to alcohol and drugs in the workplace], this means any driver ... who can, will or does cross the border. [34] Ms. Butler testified that infractions of the law are treated very seriously by the American authorities: companies are liable to fines of up to $10,000 (US), per driver, per trip, if drivers enter American territory without having been tested for alcohol or drugs. American government auditors regularly visit bus companies in Canada, in order to ensure that any cross-border travel is carried out in accordance with the American regulatory regime. Flagrant violations of U.S. law can result in the cancellation of the certification that bus companies require to drive in the States. [...] [40] As was previously noted, the bus industry in Quebec is under the supervision of the Quebec Transport Commission. In late 1997, Mr. Devlin became aware that the Société de l'assurance-automobile du Québec (or SAAQ) had commenced proceedings before the Transport Commission against Autocar Connaisseur. SAAQ was evidently seeking to have Autocar Connaisseur's operating license cancelled because of the way that the company was conducting its business. Autocar Connaisseur's new owners discovered that the company had previously lost its right to certify the roadworthiness of its buses, because of earlier problems with the Transport Commission. According to Mr. Devlin, at this point, serious consideration was given to simply shutting the company down, although ultimately the decision was taken to work with the SAAQ, to try to turn the situation around. [41] Mr. Devlin testified that he attended a show-cause hearing before the Transport Commission in January of 1999. At the hearing, Mr. Devlin explained the different programs that he was going to implement at the company, dealing with bus safety and driver education. Mr. Devlin advised the Commission that it would take six to nine months before the company would be in total compliance with the applicable regulations. The hearing resulted in a warning to Autocar Connaisseur that any further infractions would result in the automatic cancellation of the company's operating licence. Such a step would mean the end of Autocar Connaisseur. [42] One of the measures taken by Autocar Connaisseur to satisfy the commitments made to the Transport Commission was a review of the implementation of the company's drug testing policy. [...] [...] [104] The onus is on Autocar Connaisseur to establish that its refusal to tolerate employees having drug metabolites in their system while at work is reasonably necessary to accomplish the company's goal of promoting road safety, by preventing driver impairment. To show that the zero tolerance standard is reasonably necessary, it must be demonstrated that it is impossible for Autocar Connaisseur to accommodate disabled employees who test positive for drugs, without imposing undue hardship on the company. [105] In examining whether Autocar Connaisseur's drug testing policy is reasonably necessary to promote road safety, consideration must first be given to the employment context in which Autocar Connaisseur's bus drivers operate. [106] Mr. Devlin described the duties associated with driving a motor coach, explaining that alertness, as well as an ability to `multi-task' are essential. In addition to having to navigate a large vehicle through traffic, drivers have to be aware of the passengers at all times. By way of example, Mr. Devlin says a driver has to be aware if a passenger gets up to use the washroom, as a quick manoeuver by the driver could result in serious injury to the passenger. [107] Further, the environment in which motor coach drivers work makes it very difficult for bus companies to ensure that drivers are always up to the task. [108] Unlike the situation in previous drug testing cases, where employees worked under fairly close supervision inside bank offices (TD Bank), petroleum processing plants (Entropy) or the administrative offices of an Indian Band (Elizabeth Métis Settlement), bus drivers at Autocar Connaisseur spend a considerable portion of their time on the road, away from the watchful eye of their superiors. Drivers doing casino and airport runs would be on the road much of each day, whereas drivers taking charter groups on tour could be away from the Autocar Connaisseur offices for as much as thirty days at a time. While drivers check in with Autocar Connaisseur dispatchers each day by telephone, the company is unable to verify that the driver had actually carried out the necessary pre-trip inspections, or to properly assess if the driver is indeed fit to drive. [...] [110] This inability on the part of Autocar Connaisseur management to closely supervise its workforce presents particular challenges for the company in monitoring employee performance. These difficulties are compounded by the somewhat transient nature of much of Autocar Connaisseur's workforce, with many drivers working for the company on a seasonal basis. [111] Mr. Crowe described the precarious economic position of the Canadian motor coach industry, indicating that the situation at Autocar Connaisseur was no different than that at other Canadian motor coach companies. As Mr. Devlin explained, Autocar Connaisseur's ability to monitor its workforce was also limited by the financial constraints under which the company operated. Mr. Devlin testified that in 1999, Autocar Connaisseur had a fleet of 125 buses. Although the company generated gross revenues of $10 million in 1998, in fact, Autocar Connaisseur was losing substantial sums of money. Mr. Devlin quickly realized that the charter market in Quebec was simply not there to support a fleet of that size. The decision was thus made to reduce the size of Autocar Connaisseur's fleet, and the company currently operates 29 vehicles. [...] [119] Dr. Baker and Dr. Chiasson each gave testimony with respect to the effects of cannabis consumption on the human brain, and once again were in substantial agreement on many points. The active ingredient in cannabis is Nine Delta tetrahydrocannabinol or 9THC. The level of 9THC in the cannabis available in Canada today is significantly higher than in the past, and the drug accordingly that much more potent. [...] [125] Dr. Baker and Dr. Chiasson agree that individuals employed in safety sensitive positions - that is, positions where an employee could put his own safety or the safety of others at risk -should not be performing tasks such as driving motor vehicles while their ability to drive is impaired by the use of cannabis. [...] [128] Insofar as the transportation industry is concerned, Ms. Butler testified that the Canadian government's lack of involvement in regulating alcohol and drug testing means that there is a limited amount of Canadian research available in this area. She did refer to a study conducted by the British Columbia Trucking Association in 1989. According to Ms. Butler, three-quarters of the drivers surveyed reported that alcohol had compromised safety, with one in nine drivers admitting that his or her own alcohol use had compromised safety at work. Seven out of ten drivers reported having worked while affected by alcohol, and half of the drivers reported knowing other drivers who drank at work. With respect to drugs, three-quarters of the drivers surveyed reported that drug use had compromised safety, with one in twelve drivers admitting that his or her own drug use had compromised safety at work. [129] This evidence certainly suggests that the use of drugs by drivers in the transportation industry is a real problem, with significant implications for public safety. [...] [168] It is clear from the testimony of Dr. Baker and Dr. Chiasson that there is no single, ideal means of detecting employee impairment, or of identifying those who are at increased risk of being intoxicated in the workplace. While the approach advocated by Dr. Baker is a good one, in principle, it is clear from the evidence of Dr. Chiasson that it will not necessarily catch all of those employees who are at risk of putting the lives of passengers in jeopardy. We are also not persuaded that, in the specific context in which Autocar Connaisseur found itself during the summer of 1999, that Dr. Baker's method would have been all that workable. [169] First of all, Dr. Baker's approach relies to a large extent upon the observations of supervisors. While such an approach may work well in a factory or office environment, where employees are closely supervised, it is less useful in a work environment such as that at Autocar Connaisseur, where bus drivers are unsupervised for much of the time. [...] [171] Although a positive drug test does not indicate that a bus driver was actually impaired while on the job, for the reasons discussed earlier in this decision, we are satisfied that a positive test result is a `red flag', to use Dr. Chiasson's term. The presence of cannabis metabolite in an employee's urine does assist in identifying drivers who are at an elevated risk of accident. [172] We have also found that the presence of a drug testing policy will serve to deter at least some employees from using alcohol or drugs in the workplace, in a manner that would put themselves or others in danger. [173] For these reasons, we find that Autocar Connaisseur's drug testing policy is reasonably necessary to accomplish the company's legitimate work-related goal of promoting road safety. [174] There is one further reason why we have concluded that Autocar Connaisseur's drug testing policy is reasonably necessary, and that is the company's obligation to comply with American drug testing legislation. [...] [175] For these reasons, we find that Autocar Connaisseur has met the burden on it of establishing that subjecting its employees to pre-employment and random drug testing is a legitimate way to promote road safety. [176] That is not the end of the matter, however. According to the Supreme Court decisions in Meiorin and Grismer, in order to satisfy the third element of the bona fide occupational requirement defense, Autocar Connaisseur must also show that it is impossible for it to accommodate employees who test positive for drugs, and who suffer from a drug-related disability, without imposing undue hardship on the company. [...] [186] At the very minimum, however, a company such as Autocar Connaisseur should be able to extend the same opportunity to a substance-dependent driver who has tested positive as it does to drivers who come forward voluntarily with substance abuse problems. That is, these individuals should be afforded the opportunity to rehabilitate themselves, and to return to work when they are fit to do so. In our view, the company would also be justified in implementing appropriate follow-up monitoring measures to ensure that the individual continues to abstain from the use of alcohol or drugs. Finally, Autocar Connaisseur may also be able to terminate the employment of those individuals who fail to rehabilitate themselves after being afforded the reasonable opportunity to do so, although each of these situations would have to be carefully considered, on a case-by-case basis. [...] [189] Before turning to the question of remedy, we wish to make a brief comment with respect to Autocar Connaisseur's new alcohol and drug testing policy. It will be recalled that this policy, which only came into force in March of this year, applies not just to bus drivers, but to bus mechanics as well. This policy is not the subject of Mr. Milazzo's complaint, and, in our view, we would be overstepping our jurisdiction if we were to extend the scope of our inquiry to include a consideration of the legality of testing mechanics. Accordingly, we make no finding regarding Autocar Connaisseur's new policy, and specifically with respect to the question of whether the testing of Autocar Connaisseur's bus mechanics is reasonably necessary. IV. THE DECISION [17] We will deal first with the issue of the definition of safety-sensitive position. In its proposed policy, the Respondent suggested that it apply to employees who are required to operate a motor vehicle in the care or control of the company, either as part of their regular duties or from time to time. The Commission suggested that the following words be added to this definition: and are not under regular supervision. [18] We do not agree with the Commission that those words are necessary in the present context. The evidence submitted at the initial hearing clearly established that one of the reasons why the Respondent wanted to submit its bus drivers to drug and alcohol testing was because bus drivers spend a considerable portion of their time on the road, away from the watchful eye of their superiors. Drivers can be on the road much of each day or longer. In these situations, the company is unable to properly supervise their drivers. We feel that adding the words suggested by the Commission would do nothing more than create uncertainty as to the meaning of regular supervision. [19] It has been well established in the evidence given at the initial hearing that the inability of the Respondent to closely supervise its workforce presents particular challenges for the company. Furthermore, it was also established that the Respondent's ability to monitor its workforce is limited by the financial constraints under which the company operates. [20] Before turning to the other issue, we wish to add that the definition of safety-sensitive position applies only to those employees who are licensed to drive a bus and who are required to operate a bus, either as part of their regular duties or from time to time. It thus applies to bus mechanics who are licensed to drive a bus and called upon to drive a bus in the performance of their work. [21] This said, we reiterate that the Tribunal would be overstepping its jurisdiction if it were to extend the scope of its inquiry to include a consideration of the legality of testing the mechanics or other employees not licensed to drive buses. Accordingly, we make no finding with respect to the question of whether the testing of these employees is reasonably necessary. [22] With regards to the second issue, it has to do with Part IX of the Policy entitled Consequences of a Policy Violation. The last sentence of that section states that Failure to meet these conditions, including a second violation of this policy, will result in termination of employment in accordance with the agreement. [23] It is the Tribunal's opinion that the use of the word will imposes an inflexible consequence for a second violation of an addiction type disability. In our initial decision, we indicated clearly, at paragraph 186, that the Respondent may also be able to terminate the employment of those individuals who fail to rehabilitate themselves after being afforded the reasonable opportunity to do so, although each of these situations would have to be carefully considered, on a case-by-case basis. [Emphasis added] It is clear that, although we felt that the Respondent might be justified in terminating an employee who failed to rehabilitate himself/herself, we were of the opinion that every situation needed to be considered and justified on a case-by-case basis. Consequently, in order to comply with our initial ruling, we order that may be substituted for will in the last sentence of the section entitled Consequences of a Policy Violation of Part IX of the Alcohol and Drug Policy. [24] This matter also raises the issue of the last chance agreement. As the evidence submitted at the hearing established, the Respondent now requires employees who return to work after going through a drug and alcohol rehabilitation program to sign a last chance agreement", also referred to as a Memorandum of Settlement. The last chance agreement states that if an employee fails another alcohol or drug test after having gone through a rehabilitation program, no further accommodation will be considered and employment with the Respondent will be terminated. [25] The Canadian Human Rights Tribunal has not dealt with such agreements in the past. Last chance agreements have been considered, however, by arbitrators and provincial human rights tribunals and commissions. [26] The Ontario decision in Re: Ontario Human Rights Commission et al and Gaines Pet Foods Corp. et al (1993), 16 O.R. (3d) 290 sets out the basic law on this subject. In that decision, a last chance agreement was considered illegal and unenforceable in the context of an employee coping with a disability on returning to the workplace. There, the Court was concerned with an employee with cancer who was returning to the workplace after a lengthy absence due to her cancer treatment. Upon her return to work, the employer imposed a restrictive condition on her continued employment, which stated that she must maintain a level of attendance equal to or better than the average for the hourly rated employees in the plant. Her failure to meet this standard at any time would result in the termination of her employment. [27] The Court concluded that the proximity if not primary cause of the restrictive condition... arose directly from Ms. Black's absence due to her disability... the imposition of the restrictive condition was discriminatory, stemming as it did directly from her absence due to handicap... It was a condition not required of any other employee and it carried with it the sanction of immediate termination for non-compliance. [28] The Court further added that even if it could be said that she agreed to the restrictive condition, such agreement would be unenforceable", as provided by the Supreme Court of Canada dictum in Ontario (Human Right Commission) v. Etobicoke, [1982] 1 S.C.R.202 where the Supreme Court held that [Human Rights legislation] has been enacted by the Legislature...for the benefit of the community at large and of its individual members and clearly falls within the category of enactment which may not be waived or varied by private contract... [29] The issue of an alcohol addicted employee and last chance agreement was also considered in the arbitration decision Re: Camcar Textron Canada Ltd. and United Steelworkers of America Local 0222 (Commerford) (2001) 90 L.A.C. (4th) 305. In that case, an employee had returned to work under a last chance agreement concerning lateness and attendance. Following arguments concerning the ultimate reason for the termination of the employee and whether any of the absences or lateness were due to alcoholism, the arbitrator concluded: ...for the reasons reviewed in the Ottawa-Carleton case, and arising from the approach taken in Gaines Pet Foods... this issue is of limited consequence, as the breach of the Code arises for the imposition upon the grievor, for reasons arising from his disability, of a standard, the breach of which for any reason not specifically excepted would result in the most serious consequences, which was not imposed upon other employees. There can be no doubt that the breach of that standard was the cause, indeed here the only cause asserted, for his termination, and thus the enforcement of the discriminatory standard, regardless of the reasons leading to its breach by the grievor, must come under the scrutiny of the Code provisions concerning discrimination on the basis of handicap. [30] Although these decisions are in some ways quite different from the one before us, they do raise important issue concerning the legality and enforceability of last chance agreement and the possibility for the parties to contract out or waive certain rights contained in human rights legislation. [31] In Re: Canadian Pacific Railway Company and Canadian Counsel of Railway Operating Unions (United Transportation Union) (2002), C.R.O.A. Decisions No. 3269 (Picher), the arbitrator notes that while last chance agreements have an important role as an instrument in rehabilitation and in some circumstances as a form of accommodation for an addicted employee, the violation of such an agreement cannot lawfully result in automatic dismissal. Each case must be reviewed on its own merits and a finding of accommodation to the point of undue hardship must have been reached in order to justify termination of a disabled employee. Canadian jurisprudence does not, however, confirm that the violation of an agreement of the type which is the subject of this grievance must automatically result in an employee's termination. It is well established that each case must be reviewed on the merits of its own particular facts, and that in any event the application of any such agreement cannot be in violation of the duty of accommodation owed to an employee with a disability, in keeping with human rights codes such as the Canadian Human Rights Act (Re Toronto Transit Commission and Amalgamated Transit Union, Local 114, (1990) 75 L.A.C. (4th) 180 (Davie); Re Regional Municipality of Ottawa-Carleton and Ottawa-Carleton Public Employees Union, Local 503 (2000) 89 L.A.C. (4th) 412 (Mitchnick); Re Camcar Textron Canada Ltd. and United Steelworkers of America, Local 3222 (2001) 99 L.A.C. (4th) 305 (Chapman)). As the jurisprudence reflects, in many cases arbitrators will conclude that the history of employees' treatment, culminating in a last chance agreement, reflects a sufficient degree of accommodation to support the conclusion that any further continuation of the employment relationship would be tantamount to undue hardship upon the employer. That is the analysis which has to be made in each case. The mere fact of a last chance agreement does not, of itself, confirm whether there has been sufficient compliance with the duty of accommodation established under human rights legislation of general application, legislation which the parties cannot contract out of as determined by the Supreme Court of Canada ( Re Etobicoke (Borough) v. Ontario (Human Rights Commission), [1982] 1 S.C.R. 2002 at p. 213. [32] It is also the opinion of this Tribunal that, even without a last chance agreement having been signed, in many cases the history of the employees' treatment, the context of the employment environment for bus drivers, the importance of promoting road safety and the regulatory environment of the transportation industry, as they were put in evidence during the initial hearing, will reflect, in the words of the decision in Re: Canadian Pacific Railway Company and Canadian Counsel of Railway Operating Unions (United Transportation Union), a sufficient degree of accommodation to support the conclusion that any further continuation of the employment relationship would be tantamount to undue hardship upon the employer. But again, we repeat that this analysis must be made on a case-by-case basis. [33] The fact that the parties have agreed to a last chance agreement which states that they have decided that it would be unreasonable for the employer to further accommodate the employee beyond the first accommodation and that any further accommodation by the employer would be undue hardship under the Canadian Human Rights Act, does not, of itself, confirm whether there has been sufficient compliance with the duty of accommodation established under human rights legislation of general application, legislation which the parties cannot contract out. (Re: Etobicoke (Borough) v. Ontario (Human Rights Commission), [1982] 1 S.C.R. 2002 at p. 213. [34] Accordingly, the last chance agreement is in the Tribunal's opinion unenforceable in regards to the Act. As the case law indicates, an analysis must be made in each case to determine whether or not it is impossible for the employer to accommodate the needs of the employee to the point of undue hardship. While it is certainly open to the Respondent to warn employees returning to work after rehabilitation that any relapse could result in termination of there employment, the imposition of a last chance agreement cannot serve to nullify the duty of accommodation established under human rights legislation. [35] The Tribunal agrees that the concept of accommodation has its limits. This view was recently expressed by Madame Justice Heneghan of the Federal Court in City of Ottawa v. Desormeaux and City of Ottawa v. Parisien, [2004 FC 1778]. There, the Court endorsed what had been said by the Federal Court of Appeal on the issue of accommodation in relation to absenteeism in Scheuneman v. Canada (Attorney General), (2000) 266 N.R. 154 (F.C.A.), where leave to appeal to S.C.C. was refused, [2001] C.C.C.A. No. 9: ( ) It is a basic requirement of the employment relationship that an employee must be able to undertake work for the employer or, if temporarily disabled by a medical condition from so doing, must be able to return to work within a reasonable period of time. Dismissing a person who cannot satisfy this requirement is not, in the constitutional sense, discrimination on the ground of disability." Madame Justice Heneghan went on to say that there comes a point when the employer can legitimately say that the bargain is not completely capable of performance. [36] Thus, as an employer, the Respondent is not subject to an endless rehabilitation process. It might well be that a second violation of the policy will entail the end of one's employment with the company. As stated earlier, this determination will have to be made on a case-by-case basis. V. CONCLUSION The Tribunal therefore finds: That the definition of Safety-Sensitive Position which states that a Safety-Sensitive Position is as a position in which individuals have a key and direct role in an operation where performance limitations due to substance use could result in a significant incident or accident causing fatalities or serious injury, significant property damage or significant environmental damage. For the purposes of this policy, employees who are required to operate a motor vehicle in the care or control of the company, either as part of their regular duties or from time to time are considered to hold a Safety-Sensitive Position", is in accordance with the Tribunal's initial ruling. Although the Tribunal feels that the Respondent might be justified in terminating an employee who has failed to rehabilitate himself/herself, it is also of the opinion that every situations needs to be considered and justified on a case-by-case basis. Consequently, the Tribunal orders that the word may be substituted to the word will in Part IX of the Respondent's Alcohol and Drug Policy entitled Consequences of a Policy Violation. Signed by Pierre Deschamps, Chair Signed by Michel Doucet, Member OTTAWA, Ontario January 28, 2005 PARTIES OF RECORD TRIBUNAL FILE: T713/1802 STYLE OF CAUSE: Salvatore Milazzo v. Autocar Connaisseur Inc. DATE AND PLACE OF HEARING: June 22, 2004 Montreal, Quebec DECISION OF THE TRIBUNAL DATED: January 28, 2005 APPEARANCES: Daniel Pagowski For the Canadian Human Rights Commission Louise Baillargeon/ Philippe-André Tessier Reference: 2003 CHRT 37 November 6, 2003 For the Respondent

2005 CHRT 6

CHRT

Brooks v. Department of Fisheries and Oceans

en

2005-02-03

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6518/index.do

2023-12-01

Brooks v. Department of Fisheries and Oceans Collection Canadian Human Rights Tribunal Date 2005-02-03 Neutral citation 2005 CHRT 6 File number(s) T838/8803 Decision-maker(s) Groake, Paul Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE CECIL BROOKS Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - DEPARTMENT OF FISHERIES AND OCEANS Respondent RULING WITH REGARD TO THE ISSUES THAT SHOULD BE CONSIDERED IN DEALING WITH REMEDY MEMBER: Dr. Paul Groarke 2005 CHRT 6 2005/02/03 [1] There is a dispute between the parties as to the issues that should be considered in dealing with remedy. They have requested direction from the Tribunal. [2] I think I have to start by saying, as a general rule, that an adjudicator should decline to elaborate on a legal decision. It merely complicates the matter. There may nevertheless be cases where it is helpful to clarify a particular point. This is one of those cases. [3] The factual issue between the parties is relatively simple. The Complainant submitted that he would have received a permanent position, if there had been a fair competition. In my decision on liability, I found that this theory of the case was not supported by the evidence. I nevertheless went on to find, in the absence of an explanation from the Respondent, that there was a discriminatory element in the competition. It does not follow that he would have received a permanent position. [4] In his written submissions, Mr. Bagambiire lists a number of considerations that militate in favour of a finding that Mr. Brooks would have received a permanent position. I found this recitation of the evidence selective, however. The most troubling fact is that it fails to recognize the simple poverty of the evidence. This is a product of the passage of time. Many of the documents relating to the competition have been destroyed and the record is incomplete. There is nothing like the information needed to form a reliable opinion as to what would have happened in a fair competition. [5] Mr. Brooks should appreciate that I am restricted to the evidence that was put before me. When I confine myself to this evidence, and avoid speculation, I am satisfied that he finished too far down the list for me to realistically find that he would have received a permanent position. The jurisprudence from the Tribunal and the Federal Court on the question of lost wages are of no assistance here. The evidence does not suggest, seriously or otherwise, that Mr. Brooks would have received a permanent position. It suggests that he would not have received such a position. [6] There is a statement in the written submissions that the evidence pointed to the fact that Richard Starr was an alcoholic. This goes to Mr. Starr's character rather than the merits of his participation in the competition. I think it is tinged with unfairness. It neglects the fact that Mr. Starr did not testify and had no opportunity to defend himself. The evidence was merely that other individuals, who finished behind him in the competition, felt that he had a drinking problem. [7] I see no reason to go into the deficiencies in the testimony of the Complainant. In the circumstances, however, I have to point out that he must take some of the blame for his poor relations with his employer. The reality is that he has stubbornly insisted on a permanent position, almost from the beginning of the long series of events that led to the complaint. He apparently refuses to accept any finding that goes against this cherished view. [8] The real unfairness in the case is that the winning candidates retained their permanent positions. From Mr. Brooks' perspective, the competition was fixed. And at the end of the day, Mr. Savoury simply got away with it. None of this establishes however that Mr. Brooks would have been entitled to a permanent position. It is simply too late to go back, 13 years later, and hold the competition again. [9] On the request for direction, I think the Tribunal has to send a clear message that it will not be swayed by the Complainant's rather stubborn refusal to accept its decision on liability. My position remains firmly as it was, and I am satisfied, on the evidence before me, that Mr. Brooks would not have received a permanent position. The facts have been decided; the finding has been made; and the doctrine of functus officio applies. There is nothing more for me to say on the matter. [10] I have already asked the parties to provide the Tribunal with an agenda of the issues that need to be canvassed when the hearing resumes. Signed by Dr. Paul Groarke OTTAWA, Ontario February 3, 2005 PARTIES OF RECORD TRIBUNAL FILE: T838/8803 STYLE OF CAUSE: Cecil Brooks v. Department of Fisheries and Oceans RULING OF THE TRIBUNAL DATED: February 3, 2005 APPEARANCES: Davies Bagambiire Stephen Flaherty On behalf of the Complainant Scott McCrossin Melissa Cameron On behalf of the Respondent

2005 CHRT 7

CHRT

Blondin v. Purolator Courier Ltd.

en

2005-02-09

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6517/index.do

2023-12-01

Blondin v. Purolator Courier Ltd. Collection Canadian Human Rights Tribunal Date 2005-02-09 Neutral citation 2005 CHRT 7 File number(s) T982/10204 Decision-maker(s) Hadjis, Athanasios Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE LUCE BLONDIN Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - PUROLATOR COURIER LTD. Respondent RULING ON AMENDMENT OF COMPLAINT MEMBER: Athanasios D. Hadjis 2005 CHRT 7 2005/02/09 [1] The Complainant has made a motion to amend the complaint that she originally filed with the Canadian Human Rights Commission (Commission) on January 12, 2003. The Complainant alleges in her complaint that her employer, the Respondent, discriminated against her because of her marital status, contrary to s. 7 of the Act. The Complainant's spouse, who also worked for the Respondent, was dismissed in November 2001. Her spouse later filed judicial proceedings contesting his dismissal. The Complainant contends that on June 12, 2002, the Respondent reduced her seniority rights because her spouse had sued the Respondent. The Commission referred her complaint to the Tribunal on August 19, 2004. [2] On November 22, 2004, the Complainant wrote to the Tribunal Registry requesting that her complaint be amended to include an allegation that the Respondent had retaliated against her, in breach of s. 14.1 of the Act. She explained in her letter that since 2003, she has filed several complaints with the Respondent regarding a number of employment-related matters. She claims that the Respondent chose to not address any of these concerns, in reprisal against her for having filed a human rights complaint. [3] On November 12, 2004, the Respondent dismissed the Complainant from her job. She alleges that she was fired in retaliation to her human rights complaint, noting that the Respondent's decision occurred only a few months after the Commission had referred her complaint to the Tribunal. [4] The dismissal came shortly after the Complainant registered a protest with the Respondent, on October 25, 2004, concerning alleged misconduct by several other employees. The Respondent stated in its notice of dismissal to the Complainant that her accusations had been proven unfounded and defamatory, and were made with the sole intention of discrediting the employees in question. The Respondent deemed this conduct to be unacceptable and dismissed the Complainant without any further notice or delay. [5] The Respondent contests the motion to amend the human rights complaint. The Respondent claims that the Complainant's new allegations are unfounded and that in any event, the question of the Complainant's dismissal is entirely unrelated to the human rights complaint. She was fired, it is argued, not because of her complaint but because she had been propagating defamatory comments about other employees within the workplace. The Complainant contends that this explanation is merely a pretext, put forth so as to camouflage the Respondent's true intention: to free itself from the Complainant and her human rights complaint by dismissing her outright. [6] As was pointed out in Bressette v. Kettle and Stony Point First Nation Band Council, 2004 CHRT 2 at para. 16, when assessing whether to grant a motion to amend a complaint, the Tribunal should not embark on a substantive review of the merits of the amendment. This should only be done in the fullness of the evidence after a full hearing. An amendment should be granted unless it is plain and obvious that the allegations set out therein could not possibly succeed. [7] In the present case, it is not plain and obvious to me that the Complainant would be unable to establish that her dismissal was made in retaliation to her human rights complaint. Based on the allegations as presented, there is nothing to preclude the possibility of her demonstrating that retaliation constituted at least one of the factors in her dismissal. [8] The Respondent disputes the Complainant's contention that the concerns she had raised prior to her dismissal were never addressed. The Respondent claims that to the contrary, many of these questions were dealt with either through the grievance process or by other means. The Respondent can certainly raise these points before the Tribunal inquiring into the merits of the human rights complaint, but they do not make it plain and obvious that the Complainant's amended allegations will not be substantiated. [9] Similarly, the Respondent noted in its written submissions that a grievance has been filed on behalf of the Complainant contesting her dismissal, the outcome of which will determine if her dismissal was wrongful. The Respondent seemed to imply that all of the Complainant's concerns would be addressed in this fashion. However, it is far from certain that the grievance adjudicator will be making any findings as to whether s. 14.1 of the Act was infringed. It is not therefore plain and obvious that the Complainant will be prevented from establishing before the Tribunal that her allegations of reprisal are well founded. [10] In its submissions, the Respondent referred to the Tribunal decision in Uzoaba v. Canada (Correctional Service) (1994), 26 C.H.R.R. D/361 (C.H.R.T.), aff'd (1995), 26 C.H.R.R. D/428 (F.C.T.D.). In that case, the Commission attempted to adduce evidence that dated as far back as twenty years prior to the date of the human rights complaint, and which related to incidents not specifically referred to in the complaint. The Tribunal concluded that given the passage of time and the understandably hazy recollection by witnesses of the events in question, it would have been unfair to admit this evidence. The Respondent argues that it would be similarly unfairly prejudiced if the scope of the present case was extended to include the allegations of retaliation. [11] I am not persuaded by this argument. The situation in the present case is not in any way analogous to that described in Uzoaba. All of the incidents of retaliation alleged in the Complainant's amendment occurred after the filing of the complaint and if anything, witnesses will find it easier recalling these events than those relating to the existing complaint. Moreover, the matter at hand does not so much consist of enlarging the scope of the case, but rather including an additional allegation of discrimination that by definition is directly related to the existing human rights complaint. As was noted in Bressette, individuals should not be compelled to make allegations of reprisal or retaliation arising after a complaint, by way of separate proceedings. It just makes common sense for all these allegations to come before the Tribunal at the same time. [12] Furthermore, the progress of this case from referral to hearing is still in its early stages. The parties have yet to exchange their Statements of Particulars and provide disclosure, in accordance with the Tribunal's Rules of Procedure, nor has the date for the hearing itself been set. Consequently, I am satisfied that the Respondent will have adequate notice of the case it must meet and will not be prejudiced unfairly if the amendment is granted. [13] The Complainant's motion to amend her original complaint to include an allegation of retaliation pursuant to s.14.1 of the Act is therefore granted. Signed by Athanasios D. Hadjis OTTAWA, Ontario February 9, 2005 PARTIES OF RECORD TRIBUNAL FILE: T982/10204 STYLE OF CAUSE: Luce Blondin v. Purolator Courier Ltd. RULING OF THE TRIBUNAL DATED: February 9, 2005 APPEARANCES: Luce Blondin On her own behalf Franois Lumbu On behalf of the Canadian Human Rights Commission Nicola Di Iorio On behalf of the Respondent

2005 CHRT 8

CHRT

Tweten v. RTL Robinson Enterprises Ltd.

en

2005-02-11

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6516/index.do

2023-12-01

Tweten v. RTL Robinson Enterprises Ltd. Collection Canadian Human Rights Tribunal Date 2005-02-11 Neutral citation 2005 CHRT 8 File number(s) T842/9203 Decision-maker(s) Chotalia, Shirish P. Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE BRUCE TWETEN Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - RTL ROBINSON ENTERPRISES LTD. Respondent REASONS FOR DECISION MEMBER: Shirish P. Chotalia 2005 CHRT 8 2005/02/11 I. INTRODUCTION II. DISCRIMINATION COMPLAINT - AUGUST 25, 1997 III. FACTS IV. BASIS OF MY FACTUAL FINDINGS A. LAY WITNESSES B. TAPED TELEPHONE CONVERSATIONS C. DR. SETO V. ISSUES VI. LAW A. HUMAN RIGHTS LAW VII. ANALYSIS A. PRIMA FACIE CASE NOT ESTABLISHED & BREACH OF DUTY BY COMPLAINANT TO FACILITATE ACCOMMODATION I. INTRODUCTION [1] The complainant, Mr. Bruce J. Tweten, began working for the respondent, RTL Robinson Enterprises Ltd. (RTL) as of November 13, 1995. He began as an apprentice / journeyman. He left RTL for a period of time and was rehired as a heavy duty mechanic from June 13, 1996. [2] RTL operates a trucking business and has its head office in Yellowknife, Northwest Territories. RTL has a branch office in Edmonton, Alberta with a trucking division that collects, loads and hauls freight. The Edmonton office includes a mechanical repair division where Mr. Tweten repaired heavy duty equipment. [3] Unfortunately, while working at RTL, Mr. Tweten injured his back. II. DISCRIMINATION COMPLAINT - AUGUST 25, 1997 [4] Mr. Tweten injured his back while working on a trailer on August 25, 1997. He began to experience back pain. Mr. Tweten saw his physician, Dr. Seto, the following day. He then made a workers' compensation board (WCB) claim. This claim was accepted by the WCB on the basis of his back injury, and he began receiving WCB compensation benefits as of August 26, 1997. [5] Mr. Tweten then attended at a rehabilitation center and was assessed by an Orthopaedic Specialist. In November 14, 1997 WCB determined that Mr. Tweten was capable of modified work and advised Mr. Art Brochu of the same in responding to RTL's concerns pertaining to employer contributions. WCB did not provide Mr. Brochu with further details regarding Mr. Tweten's condition. This letter does not outline his limitations or capabilities or alternate or modified work duties. [6] In accordance with its assessment, WCB terminated Mr. Tweten's benefits as of December 17, 1997. The WCB case manager felt that his complaints of pain were subjective and that WCB could not offer him further treatment to assist his injury, as he had taken two rehabilitation programs without success. Mr. Tweten challenged this decision and was eventually successful in having WCB benefits re-instated from December 18, 1997 to July 2, 1999. [7] Mr. Tweten alleges that when his WCB benefits were terminated he could lift a maximum weight of 50 pounds. He alleges that he advised RTL of this restriction and that he asked Art Brochu for light duty work. He alleges that RTL denied this request and would only allow him to recommence work if he was at 100% physical ability and could perform 100% of his work duties. He alleges that RTL categorically denied him modified work, and instead terminated his employment. III. FACTS [8] In December 1997, after WCB advised Mr. Tweten that his benefits would be terminating, Mr. Tweten contacted Mr. Brochu asking for light duties to return to work. Mr. Brochu advised him that there did not exist a light duty program for a heavy duty mechanic. Mr. Brochu told him that he required a letter from his doctor outlining his physical limitations and what work he could perform without re-injuring himself. Mr. Brochu told him that after receipt of the letter he would determine if RTL could modify a work program for him. Mr. Tweten never provided such a letter to RTL. Nor did he specify to Mr. Brochu that he was capable of lifting a maximum of 50 pounds of weight. [9] Mr. Tweten was unhappy with this proposal and filed an application for long term disability (LTD) benefits on January 26, 1998 with UNUM Canada. He asked RTL for the necessary paperwork to complete this LTD claim and RTL cooperated with him in supplying requested information and forms to UNUM Canada. Mr. Tweten had received interim benefits from UNUM Canada from August 26, 1997 to December 24, 1997. Thereafter, UNUM Canada refused to provide him with further benefits on the basis that he had not demonstrated that he was incapable of performing each of the material duties of his occupation during that 120-day elimination period. [10] Meanwhile, on February 6, 1998, Mr. Brochu telephoned Mr. Tweten and asked him to come to his office to discuss what might constitute light duty work for a heavy duty mechanic. Mr. Tweten was defensive and refused to cooperate with him. Mr. Brochu asked him to return the company key still in his possession. Mr. Tweten indicated that he would have his father return the key on February 16, 1998. [11] On February 13, 1998, Mr. Brochu was in Calmar, Alberta where Mr. Tweten resided. He telephoned him and asked him to meet him for a coffee. Mr. Tweten refused to meet him or to return the key. Mr. Tweten provided the key to the RCMP and told the RCMP to advise RTL that he did not want to hear from RTL again unless it was in writing. [12] After this incident, and in light of the fact that Mr. Tweten had collected his tools from RTL work site at night in January 1998, RTL evaluated Mr. Tweten's actions as being tantamount to Mr. Tweten having quit his employ. RTL thereafter completed a record of employment that Mr. Tweten was no longer employed with RTL as of September 1, 1997. [13] In short, Mr. Brochu repeatedly asked Mr. Tweten for a medical opinion from his doctor indicating specifically what type of work Mr. Tweten was capable of doing. Thereafter, he was going to determine what, if any, accommodation RTL could make for Mr. Tweten. In spite of numerous requests for such a letter, Mr. Tweten at no time provided Mr. Brochu or anyone at RTL with a medical letter or other information outlining his limitations. [14] While Mr. Tweten had provided RTL's agent with a release to access his WCB files this was used by RTL only to address cost recovery issues before the WCB Board and Appeal Commission and not to vet his file for medical information about his limitations. The release specifically states that RTL's agent company may access the file to represent RTL's interests for this stated purpose. RTL had not sought the release for other purposes; nor did it have access to the WCB file for other purposes. IV. BASIS OF MY FACTUAL FINDINGS [15] The bases for my factual findings are outlined below. A. LAY WITNESSES [16] As the events occurred many years ago, and because there is a conflict between the oral testimonies of the witnesses, I place more weight on the letter of February 18, 1998 from Art Brochu to Christine Papenhuyzen.1 This letter was copied to Mr. Tweten; yet, he failed to dispute its contents in writing at the time. I find that this letter contains the best evidence of the events that transpired at the material time. As well, where there is a discrepancy between the testimony of Mr. Tweten and that of Mr. Art Brochu, a former employee of RTL who worked as a safety manager at the relevant times, I prefer the testimony of the latter RTL witness. I find Mr. Brochu to be a candid and direct witness. I find him to have acted reasonably in his dealings with Mr. Tweten both prior to and following the August 1997 back injury. After the injury and the termination of the WCB benefits he did not advise Mr. Tweten that he could not return to work. To the contrary he tried to meet with him to discuss the situation. Further, he does not currently work for RTL and provided an independent recollection of the events that had transpired. As well, his testimony remained consistent throughout his testimony in chief and under cross-examination. [17] On the other hand, I do not find the oral testimony of Mr. Tweten reliable given a number of factors. First, he had a more partisan interest in the complaint. He was defensive and had limited memory of the relevant events. His testimony was not logical in material areas: for example he testified that he asked Dr. Seto for a letter outlining his limitations (contrary to the testimony and notes of Dr. Seto) yet did not satisfactorily explain why he never provided such a letter to RTL. Another example is that he testified that he did not understand why he had to return the company's keys to RTL after a 6 month absence. Nor did he provide a logical explanation for why he only recorded selected conversations between himself and Mr. Brochu. B. TAPED TELEPHONE CONVERSATIONS [18] Mr. Tweten selectively taped some telephone conversations between himself and Mr. Brochu from January 14, 1998 to February 2, 1998 and filed the transcripts as exhibits. I find that these conversations were deliberately calculated by Mr. Tweten to elicit a specific response by Mr. Brochu: Mr. Tweten wished to tape a statement by Mr. Brochu that he required Mr. Tweten to be capable of 100% of his job duties prior to return to work. I note that in spite of such a statement, Mr. Brochu confirms that he requires a slip from Mr. Tweten's doctor stating that he was fit to return to work. I do not find these conversations helpful and I place no weight on them. C. DR. SETO [19] I have serious reservations about the independence of Dr. Seto. At least one of Dr. Seto's medical legal reports refers to items that are not documented in his chart notes. Although I directed him to bring his original chart to the hearing so that RTL's counsel could review it, Dr. Seto did not cooperate with this direction. Eventually, he advised the panel that he could not locate the file and thus avoided producing the same for examination by RTL's counsel. Dr. Seto testified to events that were not documented in his notes. He contradicted himself on several occasions. Overall, I found him evasive and unreliable. Even Mr. Tweten acknowledged that Dr. Seto was open to suggestion and agreed that I could not place any weight on his testimony.2 Further, I place no weight on his chart and question its authenticity and reliability. V. ISSUES [20] Based upon my findings of fact I now address the legal issues that arise. [21] The jurisdiction of this Tribunal arises from Mr. Tweten's complaint dated September 9, 1998. The crux of Mr. Tweten's complaint centres on the factual determination of whether or not RTL refused to accommodate his back injury. [22] The issues are: Did RTL discriminate against Mr. Tweten contrary to section 7 of the Canadian Human Rights Act?3 If the answer to this question is in the affirmative, has RTL established a bona fide occupational requirement (BFOR) defence further to s. 15(a) of the Act? Did RTL refuse to accommodate him as required by law? If RTL was in breach of its duty of accommodation, what remedies should be awarded to Mr. Tweten? VI. LAW A. HUMAN RIGHTS LAW [23] Mr. Tweten filed a complaint pursuant to s. 7 of the Act as it stood on September 9, 1998, complaining about events that occurred in the latter portion of 1997. Section 7 of the current Act states that it is a discriminatory practice, directly or indirectly, to refuse to employ or continue to employ any individual, or in the course of employment, to differentiate adversely in relation to an employee, on a prohibited ground of employment. One of the prohibited grounds is disability. Section 15(1)(a) outlines the bona fide occupational requirement defence: It is not a discriminatory practice if any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a bona fide occupational requirement. Section 15(2) states: For any practice mentioned in paragraph (1)(a) to be considered to be based on a bona fide occupational requirement and for any practice mentioned in paragraph (1)(g) to be considered to have a bona fide justification, it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost. Section 15(8) confirms that section 15 applies to both direct and adverse effect discrimination. [24] The Act as it stood at the time of the alleged discrimination, did not contain provisions equivalent to the current section 15(2), 15(8) and 15(9). These amendments came into force and effect as of June 30, 1998.4 [25] In 1999, the Supreme Court of Canada released its decisions in British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Services Employees' Union (B.C.G.S.E.U.), [1999] 3 S.C.R. 3 [Meiorin] and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 [Grismer]. In these two cases, the Supreme Court of Canada replaced the former jurisprudential distinction between direct and indirect discrimination with a unified approach. Under the unified approach, the onus remains upon the complainant to establish a prima facie case of discrimination. A prima facie case is one that covers the allegations made, and which, if believed, is sufficient and complete to justify a verdict in the complainant's favour in the absence of an answer from the respondent. Once a prima facie case of discrimination has been established by the complainant, the onus shifts to the respondent to prove, on a balance of probabilities, that the discriminatory standard or policy is a BFOR. In order to establish a BFOR, the respondent must prove that: it adopted the standard for a purpose or goal that is rationally connected to the function being performed. At this stage, the focus is not on the validity of the particular standard, but on the more general purpose, such as the need to work safely and efficiently to perform the job. Where the general purpose is to ensure the safe and efficient performance of the job, it will not be necessary to spend much time at this stage; it adopted the particular standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose, with no intention of discriminating against the claimant. Here, the analysis shifts from the general purpose of the standard, to the standard itself; and the impugned standard is reasonably necessary for the employer to accomplish its purpose; i.e. the safe and efficient job performance. The employer must establish that it cannot accommodate the claimant and others adversely affected by the standard without experiencing undue hardship. The employer must ensure that the procedure, if any, to assess the issue of accommodation, addresses the possibility that it might discriminate unnecessarily on a prohibited ground. As well the substantive content of a more accommodating standard offered by the employer must be individually sensitive. Alternatively, the employer must justify his reason for not offering such an alternative standard. [26] The Supreme Court's rulings in Meiorin and Grismer are also instructive in assessing whether or not an undue hardship defence has been established. In Meiorin, the Supreme Court observed that the use of the word `undue' implies that some hardship is acceptable; it is only `undue' hardship that will satisfy the test.5 An uncompromisingly stringent standard may be ideal from the employer's perspective. Yet, if it is to be justified under human rights legislation, the standard must accommodate factors relating to the unique capabilities and inherent worth and dignity of every individual, up to the point of undue hardship. The Supreme Court has further observed that in order to prove that a standard is reasonably necessary, a respondent always bears the burden of demonstrating that the standard incorporates every possible accommodation to the point of undue hardship. It is incumbent on the respondent to show that it has considered and reasonably rejected all viable forms of accommodation. The onus is on the respondent to prove that incorporating aspects of individual accommodation within the standard was impossible short of undue hardship. [27] In some cases, excessive cost may justify a refusal to accommodate those with disabilities. However, one must be wary of putting too low a value on accommodation. It is all too easy to cite increased cost as a reason for refusing to accord equal treatment. The adoption of the respondent's standard has to be supported by convincing evidence. Impressionistic evidence of increased cost will not generally suffice.6 Innovative and practical non-monetary avenues of accommodation ought to be considered. Finally, factors such as the financial cost of methods of accommodation should be applied with common sense and flexibility in the context of the factual situation under consideration.7 As observed by Cory J. in Chambly v. Bergevin [1994] 2 SCR 525, what may be entirely reasonable in prosperous times may impose an unreasonable financial burden on an employer in times of economic restraint or recession. I note that the term `undue hardship' is not currently defined in the Act. Finally, employees have a duty to assist in securing appropriate accommodation and to facilitate the search for accommodation.8 In Butler v. Nenqayni Treatment Centre Society [2002] C.H.R.D. No. 25, the former Chair of this Tribunal, as she then was, ruled that the failure of the complainant to provide the respondent with requested medical information regarding her physical limitations constituted a breach by the complainant of her duty to facilitate the search for accommodation. In short, the quest for accommodation requires give and take by all parties involved in the process. It is a two-way street. [28] In returning to the threshold question of determining whether the complainant has established a prima facie case of discrimination, this Tribunal is to conduct an inquiry into the complaint further to ss. 49 and 50. This inquiry is to be independent, impartial and have due regard to the evidence presented and the relevant law. This Tribunal is bound by the Federal Court of Appeal's ruling in Hutchinson v. Canada (Minister of the Environment) (C.A.) (2003), 4 F.C. 580. The court confirmed that both Meiorin and Grismer considered the effects of discrete, explicit standards or policies which served as screening tools; i.e., an aerobic capacity standard that adversely discriminated against women, and a visual acuity standard for the issuance of driver's licenses, constituting direct discrimination. The Federal Court of Appeal distinguished those cases from a transaction between the parties that was not driven by a pre-existing policy. Instead, there was a course of dealings in which the parties operated from an understanding of their respective rights and obligations. In Hutchinson, it was difficult to isolate and identify a particular policy or standard. In Meiorin, the Court's analysis began from a finding that the policy in question distinguished between people adversely on a prohibited ground. The Federal Court ruled that where one is dealing with a course of conduct, the more appropriate question is, does the transaction between the parties, taken as a whole, result in adverse treatment on a prohibited ground? If the transaction taken as a whole does not disclose adverse treatment, then the inquiry is at an end. If adverse treatment on a prohibited ground is shown, one proceeds to the three questions envisioned by the Supreme Court's analysis in Meiorin. In Hutchinson, the Court ruled that it was reasonably open to the Commission to find that the transaction between the appellant and the respondent, taken as a whole, did not disclose adverse treatment. [29] Further, in Hutchinson the Court affirmed that a complainant does not have the right to hold out for his or her preferred alternative. In that case, the respondent did attempt to accommodate the complainant's disability by moving her to alternate work sites, employing her on a seasonal basis, promoting a scent free environment and offering telework. The Federal Court adopted the ruling in Ontario (Ministry of Community and Social Services) v. OPSEU (2000), 50 O.R. (3d) 560, where the Ontario Court of Appeal found that the employer's Religious Observance Policy was sufficient to accommodate the individual needs of adherents of minority religions. An employee claimed the right to paid time off to observe eleven religious holidays. The employer's policy provided for two paid days off for religious observance and allowed for additional days off to be taken via scheduling changes and earned days off accumulated through the employer's compressed workweek option. The employee took the position that his earned days off from the compressed work week were his to use as he saw fit and that the employer could give him 11 paid days off for religious observance without undue hardship. The Court held that since the employer's policy was sufficiently inclusive to accommodate the claimant, the issue of accommodation to the point of undue hardship did not arise. The Federal Court ruled that one of the corollaries of this position is that claimants cannot refuse a reasonable solution on the ground that the alternative, which they favour, will not cause the employer undue hardship. VII. ANALYSIS A. PRIMA FACIE CASE NOT ESTABLISHED & BREACH OF DUTY BY COMPLAINANT TO FACILITATE ACCOMMODATION [30] In this case, the transaction as a whole that occurred between Mr. Tweten and RTL did not constitute adverse treatment by RTL against Mr. Tweten. RTL acknowledged Mr. Tweten's disability and diligently sought to meet with him to discuss accommodation. Mr. Tweten refused to facilitate such a meeting and failed to provide RTL with requested medical information about his limitations. [31] Specifically, with respect to s. 7(a) of the Act, Mr. Tweten had a back injury and thus he had a disability within the meaning of the Act. However, RTL did not refuse to employ him due to the injury. Rather, Mr. Tweten voluntarily chose to leave RTL. He failed to communicate with RTL about a return to work. He failed to report to work in December 1997 or thereafter and collected his tools in January 1998. [32] Neither did RTL contravene s. 7(b) of the Act. RTL did not differentiate adversely against Mr. Tweten. Rather RTL cooperated with Mr. Tweten by keeping his position open for him pending his return to work after his injury, and by assisting him with the long term disability forms. As well, RTL tried to meet with him repeatedly without success to discuss the status of his employment and return to work but Mr. Tweten refused to meet with Mr. Brochu. [33] Thus, the complainant has failed to establish a prima facie case of discrimination within the meaning of either section 7(a) or section 7(b) of the Act. [34] Finally, even if RTL had discriminated against Mr. Tweten, as discussed, RTL made every effort to meet with Mr. Tweten to discuss his need for accommodation, even after Mr. Tweten failed to provide it with a letter outlining his physical limitations. In failing to respond to this legitimate request from RTL, Mr. Tweten breached his duty to facilitate the search for meaningful accommodation. RTL's conduct was bona fide throughout. In the circumstances of this case, I do not find that the WCB release entitled RTL or its agent unlimited access to Mr. Tweten's file. Mr. Tweten argues that under the former s. 141 of the Workers' Compensation Act of Alberta, RTL was entitled to access his medical file. This section clearly limits the employer's access to information that is relevant to an issue under review or appeal and confines the Workers' Compensation Board's right to release information to an employer to issues pertaining to the same. The issues of an employee's needs for workplace accommodation do not fall within the scope of this section and the statutory scheme contemplated in that legislation. As well, it is not reasonable in the circumstances of this case to require RTL to write to WCB to vet its files to determine Mr. Tweten's limitations. Mr. Brochu made a bona fide effort to obtain the required medical information directly from Mr. Tweten. All Mr. Tweten had to do was to obtain his own physician's statement outlining his limitations. Even after Mr. Tweten's failure to provide such a letter, Mr. Brochu, in good faith, made numerous efforts to meet with him to discuss his job and what accommodation he sought. This is not a case wherein Mr. Tweten suffered from a mental disability that prevented him from cooperating in the search for accommodation. Mr. Tweten failed absolutely to contribute to the multi-party task of finding meaningful accommodation. He failed to walk at all on a two-way street. [35] Thus, I dismiss Mr. Tweten's claim in its entirety. Signed by Shirish P. Chotalia OTTAWA, Ontario February 11, 2005 1Exhibit R-1, Tab 10 and also contained in Exhibit R-2. 2Transcript, p. 1141, lines 21-25; p. 1142, lines 1 - 23. 3R.S.C. 1985, c. H-6 [Act] 4CIF, 1998, c. 9, ss. 9 to 34 in force 30.06.98 see SI/98-79. 5Meiorin adopts the decision in Central Okanagan School District v. Renaud, [1992] 2 S.C.R. 984. 6Grismer at paras. 41 and 42. 7Meiorin, at para. 63. See also Chambly v. Bergevin, [1994] 2.S.C.R. 525 at 546. 8 Central Okanagan School District No. 23 v. Renaud [1992] 2 S.C.R. 970 PARTIES OF RECORD TRIBUNAL FILE: T842/9203 STYLE OF CAUSE: Bruce Tweten v. RTL Robinson Enterprises Ltd. DATE AND PLACE OF HEARING: November 1 to 5, 2004 Edmonton, Alberta DECISION OF THE TRIBUNAL DATED: February 11, 2005 APPEARANCES: Bruce Tweten On his own behalf Barry D. Young For RTL Robinson Enterprises Ltd.

2005 CHRT 9

CHRT

Communications, Energy and Paperworkers Union of Canada v. Bell Canada

en

2005-02-11

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6515/index.do

2023-12-01

Communications, Energy and Paperworkers Union of Canada v. Bell Canada Collection Canadian Human Rights Tribunal Date 2005-02-11 Neutral citation 2005 CHRT 9 File number(s) T503/2098 Decision-maker(s) Deschamps, Pierre; Sinclair, Grant, Q.C. Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE COMMUNICATIONS, ENERGY AND PAPERWORKERS UNION OF CANADA AND FEMMES-ACTION Complainants - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - BELL CANADA Respondent RULING ON DISCLOSURE OF MEDICAL RECORDS PANEL: J. Grant Sinclair Pierre Deschamps 2005 CHRT 9 2005/02/11 [1] CEP intends to call seven witnesses in support of its claim for pain and suffering pursuant to section 53(2)(e) of the Canadian Human Rights Act. Bell Canada requests that the Tribunal issue an order compelling these witnesses to disclose their medical records covering the period of 1990 to 2004. [2] The medical records that Bell seeks include all clinical notes and reports made by any attending physician, psychiatrist or other health professional and all OHIP or RAMQ records pertaining to each of them. Bell seeks also any medical records which are in the possession or custody of any hospital or other health care institution, including all clinical notes and reports made by any physician, psychiatrist or other health professional employed by, or on the staff of, such hospital or other health care institution for the period and all OHIP or RAMQ records in the possession or custody of such hospital or other health care institution. [3] Ιn its November 20, 2003 letter sent to Bell, CEP states that the witnesses who will be called will give evidence about the emotional, psychological and financial impact on them of Bell's failure to implement the results of the Joint Study. In a subsequent letter dated October 1, 2004, CEP adds that these witnesses will generally provide evidence in respect of injury to dignity and self-respect, financial hardship, stress and frustration caused to them and other bargaining unit members as a result of the discrimination they have experienced. [4] Bell argues that, in making a claim for pain and suffering, these witnesses have necessarily put their respective medical conditions in issue and must disclose their medical records. [5] CEP resists Bell's request arguing that a claim for compensation for pain and suffering does not necessarily involve an individual's medical condition and does not give an automatic right to the disclosure of medical records. CEP states that it has no intention of leading medical evidence in support of its claim for pain and suffering. Its witnesses will not allege that they sought any medical attention because of discrimination. And Bell's request is an unnecessary intrusion into their private lives. [6] The Canadian Human Rights Commission also opposes Bell's motion. It adopts in their entirety CEP's submissions. [7] In support of its request, Bell relies mainly on the decision of this Tribunal in McAvinn. V. Straight Crossing Bridge Ltd., unreported, January 3, 2001, (T-558/1600), (CHRT). Bell counsels also referred the Tribunal to Hay v. University of Alberta Hospital, (1990) 69 D.L.R. (4th) 755, Frenette v. Metropolitan Life Insurance Company, [1992] 1 S.C.R. 647 and A. (M.) v. Ryan, [1997] 1 S.C.R. 157. [8] In support of its arguments, CEP relies essentially on the decision rendered by the Supreme Court of Canada in Ryan. [9] We do not agree that a claim for pain and suffering necessarily puts medical conditions in issue and calls for the production of medical records. [10] This Tribunal has awarded compensation for pain an suffering without having heard medical evidence nor ordered the disclosure of medical records (Druken et al. v. Canada Employment and Immigration Commission, 8 C.H.R.R. D 4379, Warman v. Kyburz, 2003 CHRT 18, 2003/05/09, Vlug v. CBC, T.D. 6/00, 2000/11/15, Bushey v. Sharma, 2003 CHRT 21, 2003/06/05). Tribunals and Courts often rely on a person's testimony as well as the whole of the evidence to make an award for pain and suffering. [11] That is not to say that an individual's medical condition and medical records will never be relevant to a claim for pain and suffering. Cases such as McAvinn v. Strait Crossing Bridge Ltd, 2001/11/15 (CHRT) illustrate that possibility. [12] In McAvinn, the complainant clearly made her medical condition an issue when she testified that she had sought medical care in relation to the anxiety she had experienced because of the alleged discrimination. [13] At this stage of the proceedings, unlike in McAvinn, the Tribunal has no evidence that the witnesses CEP intends to call ever sought medical care in relation to pain and suffering. In fact, CEP has clearly taken the position that these witnesses will not be alleging that they received medical attention because of Bell's alleged discrimination. [14] CEP's two letters, however, show that the witnesses to be called intend to give evidence about the emotional, psychological and financial impact of Bell's failure to abide by the results of the Joint Study (CEP's November 23, 2003 letter), and propose to give evidence in respect of injury to dignity and self-respect, financial hardship, stress and frustration caused to them and other bargaining unit members (CEP's October 1, 2004 letter). [15] In our opinion, it is not apparent that the medical records of the individuals who will be called to testify would yield any relevant information as to the financial hardship that these individuals might have experienced in relation to Bell's conduct. The same can be said with respect to frustration and injury to dignity and self-respect. [16] The emotional and psychological impact of Bell's conduct on these witnesses and the stress they might have experienced due to Bell's conduct is more problematic. As to this impact, their medical records may or may not be useful to Bell's defense. Indeed, Bell may best achieve its goals through cross-examination rather than by disclosure of medical records, with the attendant intrusion into the privacy of the witnesses. [17] The Tribunal is not in a position at this time to make any ruling as to the disclosure of medical records as they relate to psychological and emotional impact or stress. Any decision will, if necessary, be made in the context of the evidence of each witness and how that evidence unfolds. Signed by J. Grant Sinclair, Chairperson Signed by Pierre Deschamps, Member OTTAWA, Ontario February 11, 2005 PARTIES OF RECORD TRIBUNAL FILE: T503/2098 STYLE OF CAUSE: Communications, Energy and Paperworkers Union of Canada and Femmes-Action v. Bell Canada DATE AND PLACE OF HEARING: November 29, 2004 Ottawa, Ontario RULING OF THE TRIBUNAL DATED: February 11, 2005 APPEARANCES: Peter Engelmann For Communications, Energy and Paperworkers Union of Canada Andrew Raven Patrick O'Rourke K.E. Ceilidh Snider For the Canadian Human Rights Commission Peter Mantas Guy Dufort Robert Grant For Bell Canada

2006 CHRT 1

CHRT

Public Service Alliance of Canada (Local 70396) v. Canadian Museum of Civilization Corporation

en

2006-01-13

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6482/index.do

2023-12-01

Public Service Alliance of Canada (Local 70396) v. Canadian Museum of Civilization Corporation Collection Canadian Human Rights Tribunal Date 2006-01-13 Neutral citation 2006 CHRT 1 File number(s) T915/3504 Decision-maker(s) Jensen, Karen A. Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE PUBLIC SERVICE ALLIANCE OF CANADA (LOCAL 70396) Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADIAN MUSEUM OF CIVILIZATION CORPORATION Respondent RULING 2006 CHRT 1 2006/01/13 MEMBER: Karen A. Jensen [1] This is a ruling on a motion to dismiss a complaint against the Canadian Museum of Civilization (the Museum) without a hearing. The complaint involves allegations by the Public Service Alliance of Canada (PSAC) that the job evaluation plan used by the Museum was gender-biased and contrary to sections 10 and 11 of the Canadian Human Rights Act (the Act). [2] The Museum contends that the Tribunal does not have jurisdiction to hear the complaint because the Canadian Human Rights Commission (the Commission) has withdrawn a report which was the basis for the Commission's decision to refer the complaint to the Tribunal. [3] The report in question was completed by Dr. Lois Haignere of Haignere Inc., an external consultant retained by the Commission during the investigation of the complaint, to examine whether gender bias existed in the Museum's job evaluation plan. In her report, Dr. Haignere concluded that the plan was likely gender-biased. The Commission investigator adopted Dr. Haignere's conclusions and recommended that a Tribunal inquiry into the complaint be requested. The Museum and PSAC were provided with an opportunity to respond to the Investigator's report. [4] On the basis of all the material before it, including the Investigator's report and Dr. Haignere's Report, the Commission decided to refer the complaint to the Tribunal for further inquiry. The referral was made on April 1, 2004. [5] In May, 2005, after the Tribunal had instituted an inquiry and heard preliminary motions on the matter, the Commission advised the Tribunal and the other parties that it would not be calling Dr. Haignere as a witness. At that time, the Commission also informed the parties that it was looking into retaining another expert. [6] The Commission subsequently informed the parties and the Tribunal that it had retained Dr. Nan Weiner to prepare a report. A copy of this report was provided to the parties. In it, Dr. Weiner stated that while there was some gender bias in the Museum's job evaluation plan and process, it was likely not significant. [7] The Museum contends that the Commission's decision not to call Dr. Haignere as a witness during the hearing means that it has effectively withdrawn the Haignere report. Since the basis of the decision to refer the complaint to the Tribunal was the Haignere report, the withdrawal of that report constitutes the effective withdrawal of the complaint. The Museum asserts that the Commission has the authority and indeed, an obligation to withdraw a complaint in circumstances such as the present ones. Therefore, the Museum urges this Tribunal to find that when the Commission decided not to call Dr. Haignere to testify it effectively exercised its authority to withdraw the complaint. [8] In the alternative, the Museum argues that the referral of the complaint to the Tribunal is invalid. The Weiner report does not conclusively determine that gender bias existed in the Museum's job evaluation plan. Therefore, the foundation for the Commission's decision to refer the complaint to this Tribunal has been removed. Without this foundation, it is argued, the Commission's decision to refer the complaint is invalid and therefore, by extension, the Tribunal's jurisdiction to inquire into the complaint is invalidated. I. THE ISSUES [9] The issues in this motion are as follows: Did the Commission withdraw the Haignere report and thereby effectively withdraw the complaint? Do the Commission's actions and decisions with regard to the reports affect the Tribunal's jurisdiction to inquire into the complaint? [10] For the reasons that follow, I find that the answer to both questions is `no'. Therefore, I must dismiss the Museum's motion. II. ANALYSIS A. Did the Commission withdraw the Haignere report and thereby effectively withdraw the complaint? [11] The cornerstone of the Museum's motion to dismiss the complaint is the contention that the Commission has withdrawn the Haignere Report. However, an examination of the record reveals no indication that the Haignere Report has been withdrawn. During a case conference on this matter on May 11, 2005, counsel for the Commission stated that the Commission will not be calling Lois Haignere. Commission counsel also indicated that he would be looking at calling another expert to testify at the hearing. [12] The Commission subsequently retained Dr. Nan Weiner to produce a Report and to testify at the hearing. Dr. Weiner's Report was disclosed. The Commission then indicated that it intended to call Dr. Weiner to testify instead of Dr. Haignere. [13] In my view, the Commission's decision not to call Dr. Haignere as a witness during the hearing does not constitute a withdrawal of the Haignere Report. It is simply a decision by the Commission about the witnesses it will and will not be calling to testify at the hearing. [14] As a party to the inquiry, the Commission is entitled to make decisions and take positions during the hearing which, in its opinion, are in the public interest (Canadian Human Rights Act, s. 51). Such decisions regarding the public interest are left to the discretion of the Commission. This includes decisions about the evidence it will or will not lead, the arguments it will make and even whether it will participate in the hearing. [15] There is nothing in the Act that compels the Commission, as a party to the Tribunal proceedings, to make decisions and take positions which are consistent with the investigator's findings or other pre-referral reports. The Tribunal's inquiry is a de novo process during which the parties are free to take positions and make decisions based on their interests provided these positions have been disclosed in advance in accordance with the Tribunal's Rules of Procedure. Thus, the Commission's decision to call Dr. Weiner to testify instead of Dr. Haignere cannot be interpreted as a constructive withdrawal of the Haignere Report. [16] Moreover, even if it could be said that the Haignere report was effectively withdrawn when the Commission decided to call Dr. Weiner as a witness instead of Dr. Haignere, this could not be taken to mean that the Commission has withdrawn the complaint. [17] The Commission does not have the authority to unilaterally withdraw a complaint once a referral to the Tribunal has been made. There are a number of reasons for this. Firstly, the complainant has an independent right to proceed with the complaint regardless of the actions taken by the Commission (See: Premakumar v. Air Canada, [2002] C.H.R.D. No. 17 at para. 27 (CHRT); and McKenzie Forest Products Inc. v. Ontario (Human Rights Commission) (2000) 48 O.R. (3d) 150 at para. 34 (C.A.)). [18] As this Tribunal stated in Ct v. Attorney General of Canada (Representing R.C.M.P.), 2003 CHRT 32 at para. 12, the complaint belongs to the complainant, not the Commission. Thus, even if the Commission decides to withdraw from the proceedings, the complainant is entitled to proceed with the hearing and the Tribunal's jurisdiction is unaffected. This ensures that complainants retain control over the enforcement of their statutory rights. [19] In the present case, the complainant, PSAC, is clearly prepared to proceed with the case regardless of the actions and decisions taken by the Commission. PSAC states that it has retained an expert who has analyzed the Museum's job evaluation plan and has found evidence of gender bias. Therefore, PSAC is insisting that the Tribunal fulfill its obligation under s. 50(1) of the Act to provide it with a full and ample opportunity to present evidence and make representations. [20] The Museum's response to this is that the Commission's authority to withdraw the complaint is subject to PSAC's right to bring a separate motion to establish its private interest in proceeding with the complaint. According to the Museum, if the complainant can resist the withdrawal of the complaint by bringing a motion for the Tribunal's permission to proceed, then there is no inconsistency between the Commission's ongoing obligation to screen complaints throughout the inquiry and the complainant's right to be heard. [21] However, in my view, it is clearly not consistent with the goals of the Act to require complainants to bring a motion to defend their right to be heard by the Tribunal. Such a requirement would place an additional burden on complainants and might well have the effect of discouraging them from pursuing their rights under the Act. Therefore, the Museum's arguments in that regard must be rejected. [22] The second reason that the Commission does not in fact, have an ongoing obligation to screen complaints and to withdraw them in the appropriate circumstances after the referral is that at that point, it becomes the responsibility of the Tribunal, not the Commission, to decide whether the complaint has any merit. Like the Tribunal in Premakumar, I find the Ontario Court of Appeal's analysis in McKenzie Forest Products Inc, regarding the handling of human rights complaints in the Ontario context to be applicable in the federal jurisdiction (Premakumar, supra, at para. 27). [23] Once the Commission has decided to refer the matter to the Tribunal for further inquiry, its decision-making role is over. The Tribunal then assumes the exclusive authority for determining whether the evidence supports the complainant's position or not. Thus, after the referral has been made, the Commission can neither reconsider its decision nor unilaterally withdraw the complaint because to do so would usurp the Tribunal's function as the adjudicative body in the human rights process. [24] For these reasons, I decline to follow the obiter dicta of the Tribunal in Kamani v. Canada Post Corporation (1993), 23 C.H.R.R. D/98 at para's. 30 and 33, and Sehmi v. Canada (VIA Rail), [1995] C.H.R.D. No. 9 as was suggested to me by counsel for the Museum. Moreover, I disagree that the Grover case constitutes an endorsement by the Federal Court of the Commission's authority to withdraw a complaint or to reconsider its decision to refer the complaint to Tribunal (Canada (Attorney General) v. Grover 2004 FC 704 at para. 45). It is clear from the context in that case that when the Federal Court quoted the Tribunal's comments in Kamani, it was to underscore the Commission's pre-referral obligation to complete a careful and thorough investigation. [25] Moreover, I disagree with the Museum that the case of British Columbia (Police Complaint Commissioner) v. Vancouver (City) Police 2003 BCSC 279 is applicable to the present circumstances. The legislative context in the B.C. case is different. In that case, the Court found that pursuant to the Police Act, R.S.B.C. 1996, c. 367, the Police Complaint Commissioner was effectively the complainant and therefore, had the power to unilaterally withdraw the complaint. The same does not hold in the context of the Canadian Human Rights Act. Under the Act, the role of the Commission is clearly distinct from that of the complainant. The complainant has the power to unilaterally withdraw a complaint. The Commission, however, does not have this power. B. Do the Commission's actions and decisions with regard to the Weiner and Haignere reports affect the Tribunal's jurisdiction to inquire into the complaint? [26] In my view, the post-referral disclosure of the Weiner report has no effect whatsoever on the Tribunal's jurisdiction to inquire into the complaint. [27] The Commission makes a decision to refer a complaint to the Tribunal based on the information available to it at the time. If a party is of the view that the Commission's decision is invalid, the only recourse is to apply for judicial review of the decision in the Federal Court of Canada. The Tribunal has no authority under the Act to question the validity of the Commission's decision to refer a complaint to it. This authority falls within the exclusive purview of the Federal Court. (International Longshore & Warehouse Union (Maritime Section), Local 400 v. Oster, 2001 FCT 1115 at para. 29; Tweten v. RTL Robinson Enterprises Ltd. 2004 CHRT 8 at para.17) [28] Thus, even if it could be said that the Haignere Report was replaced by the Weiner Report, the Tribunal could not make a determination as to whether such action invalidated the referral. Rather, barring a successful application for judicial review of the Commission's decision, the Tribunal is required to proceed with an inquiry into the complaint. [29] The Museum argues that the Commission's statutory authority to request an inquiry is limited to the complaint to which the report relates (s. 44 of the Act). Therefore, by extension, the Tribunal's jurisdiction is limited to the complaint to which the report relates. Since the report in this case effectively means the Haignere report, and the Commission has decided not to call the author of this report, the Museum contends that the Tribunal is without jurisdiction to proceed any further. [30] The Museum's arguments in this regard are not consistent with the Federal Court of Appeal's statements in Bell Canada v. Communications, Energy and Paperworkers' Union of Canada, [1999] 1 F.C. 113 at para. 37 (F.C.A.). In that case, the Court of Appeal held that in inquiring into the complaint, the Tribunal is in no way bound by the investigator's report even if the report is adopted by the Commission as the reasons for its decision to refer the complaint to the Tribunal. The Court declared that the Tribunal is an autonomous body that exercises its adjudicative functions independently of the Commission. It follows that even though the Haignere report was adopted by the investigator and relied upon by the Commission in reaching its decision, the Tribunal is not bound by it. Similarly, the Commission's decision not to call Dr. Haignere as a witness during the hearing does not affect the Tribunal's jurisdiction. [31] I find the reasons of the Ontario Board of Inquiry in Shepherd v. Ontario Corp. 1110494 (2000), 38 C.H.R.R. D/284 regarding the effect of a potentially invalid referral upon the Board's jurisdiction to be illuminating. In that case, the Ontario Human Rights Commission argued that, as a result of a procedural error in the referral process, its decision to refer the complaint was a nullity. The Board refused to accept this argument stating that the Commission's characterization of its defect as a nullity does not operate to nullify the Board's jurisdiction (Shepherd, supra, at para. 13). The Board stated that if it terminated the inquiry and closed the file in that case, it would be abrogating its statutory duty to hold a hearing (Shepherd, supra, at para. 19). [32] In my view, the same reasoning applies in the federal context. Once a referral has been made, in the absence of circumstances giving rise to an abuse of process, the Act requires that an inquiry be held into the complaint (See: s. 49(2), Canadian Human Rights Act, and Tweten, supra, at para. 16). There is no evidence of any circumstances giving rise to an abuse of process in the present case. [33] Therefore, the inquiry into the complaint must proceed. III. ORDER [34] For the foregoing reasons, the Museum's motion is dismissed. Signed by Karen A. Jensen OTTAWA, Ontario January 13, 2006 PARTIES OF RECORD TRIBUNAL FILE: T915/3504 STYLE OF CAUSE: Public Service Alliance of Canada (local 70396) v. Canadian Museum of Civilization DATE AND PLACE OF HEARING: December 7, 2005 Ottawa, Ontario DECISION OF THE TRIBUNAL DATED: Janaury 13, 2006 APPEARANCES: Andrew Raven On behalf of the Complainant Pam MacEachern On behalf of the Canadian Human Rights Commission David Sherriff-Scott Mandy Moore On behalf of the Respondent

2006 CHRT 10

CHRT

Basudde v. Canada (Health Canada)

en

2006-03-03

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6781/index.do

2023-12-01

Basudde v. Canada (Health Canada) Collection Canadian Human Rights Tribunal Date 2006-03-03 Neutral citation 2006 CHRT 10 File number(s) T901/2104 Decision-maker(s) Deschamps, Pierre Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE CRIS BASUDDE - and - SHIV CHOPRA Complainants - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - HEALTH CANADA Respondent RULING 2006 CHRT 10 2006/03/03 MEMBER: Pierre Deschamps I. INTRODUCTION II. BACKGROUND III. ARGUMENTS IV. ANALYSIS V. THE LAW VI. RULING [1] This is a ruling on Respondent's objection to the introduction by the Complainant of evidence on the selection process leading to the appointment of Dr. Timothy Scott to the position of Director, BVD I. INTRODUCTION [2] The Respondent, Health Canada, hereafter HC, objects to evidence being tendered by the Complainant in the present proceedings concerning the appointment, in 1995, of Dr. Timothy Scott as Director of the Bureau of Veterinary Drugs, hereafter BVD. Respondent argues that anything pertaining to the selection process for the BVD Director position has already been decided in a previous decision of this Tribunal. [3] In addition, the Respondent argues that any issue revolving around Dr. Scott's appointment should have been raised in the course of the hearings regarding Dr. Chopra's 1992 complaint. [4] In support of its position, the Respondent relies on the doctrine of res judicata, issue estoppel and abuse of process. [5] For his part, the Complainant argues that the events he wants to introduce in evidence were not the object of any decision by this Tribunal. These events pertain to what took place after corrective measures were implemented at the end of 1994 with respect to the selection process pertaining to the position of Director, BVD. [6] In order to rule on Respondent's objection, there is a need for the Tribunal to describe the facts that have led to Respondent's objection. II. BACKGROUND [7] On September 16, 1992, Dr. Chopra filed a complaint with the Canadian Human Rights Commission. His complaint was later referred to the Tribunal. It was first heard by a three member panel (Soberman Panel) which dismissed Dr. Chopra's complaint. [8] The record shows that, after a judicial review, Dr. Chopra's 1992 complaint was the object of a second hearing by this Tribunal. Tribunal Member Hadjis was assigned to hear the case on the basis of the record, augmented by certain additional evidence. [9] In his 1992 complaint, Dr. Chopra alleged that he had been treated unfairly in the manner in which his performance appraisals were prepared during the 1990 to 1992 period and that he received this treatment because of his color, race and national or ethnic origin. More specifically, Dr. Chopra complained that he had been discriminated against in the selection process leading to the appointment of Dr. Claire Franklin as Director, Bureau of Human Prescription Drugs, hereafter BHPD. [10] In the course of the hearing presided by Mr. Hadjis, Counsel for the Commission referred to events that occurred outside the 1990-1992 period. One of these events was the appointment, in December 1993, of Dr. Timothy Scott to the position of Director, BVD. This evidence was tendered, it appears from Mr. Hadjis' decision, as evidence of ongoing discrimination at HC (Chopra v. Canada (Department of National Health and Welfare), [2001] C.H.R.D. No. 20, para. 136, hereafter the Hadjis decision). [11] Even though this event was not part of the initial facts set out in Dr. Chopra's 1992 complaint, Mr. Hadjis went on to deal with the December 1993 competition that led to the appointment of Dr. Scott (Hadjis decision, para. 141 and following). The following facts were considered by Mr. Hadjis. [12] In December 1993, a competition was held within HC for the position of Director, BVD. Dr. Chopra applied for the position and was screened out. Another individual, Dr. Casorso, who had also applied for the position, was not chosen. [13] Dr. Chopra as well as Dr. Casorso appealed the appointment of Dr. Scott as Director, BVD, to the Public Service Commission Appeal Board, hereafter the PSCAB. Dr. Chopra's appeal was dismissed while Dr. Casorso's appeal was allowed on the basis that the Screening Board had not properly considered his candidacy in relation to the experience requirements that were established by the Department for this position. [14] Following the PSCAB decision, HC took corrective measures to address the Appeal Board's finding in the Casorso matter in respect of the selection process for the position of Director, BVD. [15] The criteria which required recent experience in managing a scientific or medical or veterinary organization with multifaceted programs was eliminated. Furthermore, HC ordered that candidates who had been screened out on the basis that they did not have experience as a departmental representative with outside organizations or management experience should be reassessed. [16] Thus a new competition was held and at the end of the process and, on February 28, 1995, Dr. Scott was confirmed as Director, BVD effective March 13, 1995. III. ARGUMENTS [17] Counsel for the Complainant argues that, after the implementation of the corrective measures following Dr. Casorso's successful appeal, Dr. Chopra was not considered for the position of Director, BVD and was, in fact, completely ignored. According to Counsel for the Complainant, this lends support to Dr. Chopra's claim of discrimination. [18] Counsel for the Complainant further argues that the events that occurred after the corrective measures were implemented are events that were not addressed by Mr. Hadjis in his decision and, thus, should be part of the issues to be decided by the Tribunal in the present proceedings. Counsel for the Complainant, however, conceded that the findings of Mr. Hadjis in relation to the 1993 competition for the position of Director, BVD should stand. [19] Counsel for the Respondent argues, on the contrary, that Mr. Hadjis' decision covers every aspect of the 1993 competition which led to the appointment of Dr. Scott to the position of Director, BVD. He relies on the doctrine of res judicata, issue estoppel and abuse of process to support his argument that evidence concerning the appointment of Dr. Scott should not be heard by this Tribunal. [20] Counsel for the Respondent further argues that Dr. Chopra could have complained about the fact that he was not considered in the second competition for the position of Director, BVD, in the course of the hearings of his 1992 complaint. [21] Firstly, Counsel for the Respondent underscores the fact that Dr. Chopra's 1992 complaint was heard by the Soberman Panel in September and October 1995, well after Dr. Scott's appointment to the position of Director, BVD in February 1995. Secondly, Counsel for the Respondent submits that the issue should have been fully litigated before the Hadjis Tribunal when it heard Dr. Chopra's 1992 complaint in 1999 and 2000. [22] Counsel for the Respondent argues that, to permit or authorize the litigation of this issue - i.e. Dr. Chopra not being considered in the second competition for the position of Director, BVD, would constitute an abuse of process. IV. ANALYSIS [23] The first hearing of Dr. Chopra's 1992 complaint by the Soberman Panel took place in September and October of 1995. Respondent argues that any discrimination issue in relation to Dr. Scott's appointment should have been dealt with at that time. [24] This view ignores the fact that Dr. Chopra's 1992 complaint purported to cover events that occurred in the 1990 to 1992 period, more specifically those related to the staffing of the position of Director, BHPD between September 1990 and the spring of 1992 (Hadjis decision, para. 2). It is only in the course of the Hadjis hearing, which went from May 17, 1999 to December 11,2000, that the competition pertaining to the staffing of the position of Director, BVD in December 1993 was raised as an additional fact to be considered by Mr. Hadjis. [25] It is worth noting here that, in his decision, Mr. Hadjis refers to the fact that during final arguments in the re-hearing of Dr. Chopra's 1992 complaint, there was some debate between counsel as to the parameters of the inquiry into the 1992 complaint since much of the evidence adduced by the Commission at the re-hearing went beyond the matters specifically referred to in the complaint (Hadjis decision, para. 254). [26] After having carefully reviewed the submissions of all the parties, including Dr. Chopra himself, Mr. Hadjis concluded that all the evidence could be assessed by him for its value as circumstantial evidence in support of the key aspect of the complaint, that is the staffing of the position of Director of BHPD, in the 1990 to 1992 period (Hadjis decision, para. 254). Earlier in his decision, Mr. Hadjis identified as the events at the core of Dr. Chopra's complaint those which occurred during the 1990 to 1992 period (Hadjis decision, para. 82). [27] It therefore appears that what was at the heart of Dr. Chopra's 1992 complaint was the staffing of the position of Director, BHPD and that the additional evidence adduced was circumstantial evidence in support of the key aspect of the Complaint, i.e. the staffing of the position of Director, BHPD. The 1993 competition thus appears not to have been fundamental to the Hadjis proceedings (see Joss v. Canada (Treasury Board), [1999] F.C.J. No 1819 (QL) (T.D.)). [28] This said, the Tribunal cannot, however, ignore the fact that, in his decision, Mr. Hadjis did make findings of fact in connection with allegations of discrimination related to events which were outside the 1990-1992 period, namely the appointment of Dr. Scott to the position of Director, BVD. [29] In this respect, Mr. Hadjis found that Dr. Chopra was not the victim of adverse differential treatment with regard to the December 1993 competition for the position of Director, BVD. Mr. Hadjis further found that no evidence was adduced indicating that Dr. Chopra did, in fact, possess the qualification of experience in dealing with outside organizations (Hadjis decision, para. 288). On this basis, Mr. Hadjis concluded that Dr. Chopra was not qualified for the position and that there was no prima facie case of discrimination. [30] Even if these findings can be said to be only incidental to the core issue which Mr. Hadjis had to decide, i.e. the staffing of the position of Director, BHPD, they still remain findings of fact made by Mr. Hadjis that I cannot ignore. [31] In a preliminary decision related to the present proceedings, Tribunal Member Dr. Groarke expressed the view that the alleged failure to appoint Dr. Chopra to the position of Director, BVD in 1993 had already been litigated. On this point, Dr. Groake indicated in his ruling that the Hadjis Tribunal received evidence relating to the events that took place between 1992 and 1994 and expressed the view that this evidence, presented by the Commission on behalf of Dr. Chopra, clearly formed part of Dr. Chopra's case. [32] As true as these statements may be, I cannot infer from Dr. Groarke's ruling that the events that occurred after the PSCAB decision on the Casorso appeal form part of Mr. Hadjis decision. [33] The Tribunal thus finds: that the period covered by the complaint filed by Dr. Chopra in 1992 was that of 1990 to 1992, more precisely September 16, 1992, the date of the filing of the complaint; that, the staffing of the position of Director, BHPD was at the core of the 1992 complaint; that additional allegations of discrimination were raised in the course of the second hearing by Mr. Hadjis of the 1992 complaint, notably allegations of discrimination in relation to the selection process of December 1993 leading to the appointment of Dr. Scott as Director, BVD; that these allegations, although incidental and not part of the scope of the complaint filed in 1992, led to certain findings of fact by Mr. Hadjis; that these findings cannot be ignored by the Tribunal but must be put in the context of the 1992 complaint and of Mr. Hadjis' analysis of the December 1993 competition. [34] In his analysis of the evidence pertaining to the 1993 competition (Hadjis decision, para. 141-142), Mr. Hadjis only considered the facts related to the initial competition. He did not deal with the corrective measures that were implemented after Dr. Casorso was successful in his appeal. Nor did he deal with the events that took place after the implementation of these corrective measures and with any allegation of discrimination related to events that followed the implementation of the corrective measures. [35] The Tribunal therefore finds that events which took place after the PSAB decision in November 1994 were not considered, nor decided, by Mr. Hadjis in his decision. His findings of fact are limited to the initial 1993 competition and do not the cover the overall process pertaining to the staffing of the position of Director, BVD. [36] On this point, the Tribunal disagrees with Respondent's assertion that the corrective measures put in place after the Casorso decision are subsumed in the overall selection process of a Director for the BVD, process which started in December 1993 and ended in February 1995 with the confirmation of Dr. Scott as Director, BVD. V. THE LAW [37] Applying to these findings the law on res judicata and issue estoppel (see Angle v. Canada (Minister of National Revenue), [1975], 2 S.C.R. 248, QL, page 4), the Tribunal concludes: that the first criterion set out by Lord Guest in Carl Zeiss Stiftung, as cited in Angle, has not been met, i.e. that the same question raised in the present proceeding has already been decided by a previous tribunal; that issues related to allegations of discrimination arising after the PSCAB decision of November 1994 were not addressed by the Hadjis tribunal; that it cannot be inferred that these issues are subsumed in the findings of Mr. Hadjis on the initial competition pertaining to the selection of a Director, BVD; that there is no abuse of process on the part of the Complainant. [38] Even if I had come to a different conclusion, i.e. that the three pre-conditions for issue estoppel to apply had been met, I would have refused, using my judicial discretion (Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460 (QL), p. 13), to apply issue estoppel given the fact that the 1993 competition and the subsequent competition pertaining to the appointment of the Director, BVD were not at the core of the 1992 complaint filed by Dr. Chopra and that the 1993 competition was introduced into evidence, as stated by Mr. Hadjis in his decision, in support of the key aspect of the 1992 complaint, that is, the staffing of the position of Director, BHPD in the 1990 to 1992 period (Hadjis decision, para. 254). VI. RULING [39] Hence, Respondent's objection to the introduction of evidence by the Complainant on the appointment of Dr. Scott as Director, BVD is dismissed. The Complainant is allowed to adduce evidence pertaining to events that took place after corrective measures were implemented following the Casorso decision rendered by the PSCAB in November 1994. Signed by Pierre Deschamps OTTAWA Ontario March 3, 2006 PARTIES OF RECORD TRIBUNAL FILE: T901/2104 STYLE OF CAUSE: Cris Basudde and Shiv Chopra v. Health Canada RULING OF THE TRIBUNAL DATED: March 3, 2006 APPEARANCES: Kavid Yazbeck On behalf of the Complainants No one appearing On behalf of the Canadian Human Rights Commission David Migicovsky On behalf of the Respondent

2006 CHRT 11

CHRT

Warman v. Kulbashian

en

2006-03-10

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6776/index.do

2023-12-01

Warman v. Kulbashian Collection Canadian Human Rights Tribunal Date 2006-03-10 Neutral citation 2006 CHRT 11 Decision-maker(s) Hadjis, Athanasios Decision type Decision Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE RICHARD WARMAN Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - ALEXAN KULBASHIAN, JAMES SCOTT RICHARDSON, TRI-CITY SKINS.COM, CANADIAN ETHNIC CLEANSING TEAM, AND AFFORDABLE SPACE.COM Respondents DECISION MEMBER: Athanasios D. Hadjis 2006 CHRT 11 2006/03/10 I. THE COMPLAINT II. WHAT CIRCUMSTANCES GAVE RISE TO THIS COMPLAINT? III. WHAT QUESTIONS NEED TO BE ADDRESSED IN THIS CASE? A. Question 1 - Is material sent over the Internet a communication within the meaning of s. 13 of the Act? B. Question 2 - What is the Internet material that allegedly violates s. 13? (i) Material on the tri-cityskins.com website (ii) Material on the wpcect.com website a) The Links page b) The Thoughts page c) The newsletter - Vinland Voice C. Question 3 - Is the material likely to expose a person or persons to hatred or contempt by reason of the fact that they are identifiable on the basis of a prohibited ground of discrimination? (i) The tri-cityskins.com material (ii) The wpcect.com material (iii) The evidence of Dr. Frances Henry D. Question 4 - Did Mr. Kulbashian or Mr. Richardson, alone or in concert with each other or others, repeatedly communicate the Hate Messages, or cause them to be so communicated? (i) Evidence gathered by Mr. Warman (ii) Evidence gathered by the London Police Service (iii) Link between Mr. Richardson and Mr. Kulbashian (iv) Print media articles about Mr. Richardson and Mr. Kulbashian (v) The Tribunal's findings regarding Mr. Richardson and Mr. Kulbashian E. Question 5 - Has the complaint been substantiated against the other named respondents (Affordable Space.com, Canadian Ethnic Cleansing Team (CECT) and Tri-City Skins.com)? (i) Affordable Space.com (ii) The Canadian Ethnic Cleansing Team (iii) Tri-city Skins.com IV. REMEDIES A. An order that the discriminatory practice cease (s. 54(1)(a)) B. An order for special compensation (s. 54(1)(b)) C. Interest D. Penalty (i) Mr. Kulbashian (ii) Mr. Richardson (iii) The Canadian Ethnic Cleansing Team (iv) Affordable Space.com I. THE COMPLAINT [1] The complainant, Richard Warman, has filed a complaint alleging that in 2001 and 2002, the respondents, Alexan Kulbashian and James Scott Richardson, communicated messages over the Internet that exposed individuals who are non-Christian, non-Caucasian, or of other national ethnic origins, to hatred or contempt, contrary to s. 13 of the Canadian Human Rights Act. In his complaint form, Mr. Warman named three additional respondents, identified as Tri-City Skins.com, Canadian Ethnic Cleansing Team (CECT), and Affordable Space.com. [2] The Canadian Human Rights Commission (Commission) fully participated at the hearing into the complaint and was represented by legal counsel. Neither Mr. Warman nor the respondents were represented by legal counsel, though it should be noted that Mr. Warman is a lawyer by profession. Mr. Kulbashian and Mr. Richardson were present at the hearing but neither of them opted to testify or call any witnesses after the close of the Commission's and Complainant's cases. Mr. Kulbashian and Mr. Richardson introduced some documents into evidence through their cross-examination of Commission witnesses. [3] The other three named respondents did not formally appear at the hearing, although Mr. Warman and the Commission allege that Mr. Kulbashian and/or Mr. Richardson are closely linked to these respondents. I will be dealing with this issue in due course, later in the decision. II. WHAT CIRCUMSTANCES GAVE RISE TO THIS COMPLAINT? [4] Mr. Warman is a resident of Ottawa. He has developed an interest in human rights issues over the past 15 years, and is actively involved in anti-racism groups. For a time, he worked for the Commission. Most recently, he has focussed his attention on hate propaganda disseminated through the Internet, by monitoring the Internet activity of what he describes as extreme right-wing and neo-Nazi groups. [5] In 2001, Mr. Warman started monitoring the websites of two groups, the Tri-City Skins and the Canadian Ethnic Cleansing Team, both of which were allegedly based in south-western Ontario. According to Mr. Warman, their websites were respectively Tri-cityskins.com and wpcect.com (an abbreviation for White Power - Canadian Ethnic Cleansing Team). After conducting some research, Mr. Warman also determined that both of these websites were made available on the Internet through the web hosting services that were provided by the respondent firm, Affordable Space.com. He also believed that both Mr. Kulbashian and Mr. Richardson were involved in the operation of Tri-cityskins.com, wpcect.com, and Affordable Space.com. In Mr. Warman's view, the material found on the websites violated s. 13 of the Act, so he filed the present complaint on February 5, 2002. [6] The websites in question were no longer available on the Internet at the time of the hearing into the complaint. III. WHAT QUESTIONS NEED TO BE ADDRESSED IN THIS CASE? [7] I must address the following questions in this case: Is material sent over the Internet a communication within the meaning of s. 13 of the Act? What was the Internet material that Mr. Warman alleges violates s. 13 of the Act? Was this material likely to expose a person or persons to hatred or contempt by reason of the fact that they are identifiable on the basis of a prohibited ground of discrimination? Did Mr. Kulbashian or Mr. Richardson, alone or in concert with each other or others, communicate this material repeatedly, or cause it to be so communicated? Has the complaint been substantiated against the other named respondents (Tri-City Skins.com, Canadian Ethnic Cleansing Team (CECT) and Affordable Space.com)? [8] As I explain in this decision, I find that the material in question constitutes hate messages as contemplated by s. 13 of the Act, and that Mr. Richardson as well as Mr. Kulbashian and his firm, Affordable Space.com, were involved in various ways in the communication of these messages. I also find that the Canadian Ethnic Cleansing Team is a group of persons acting in concert that was responsible for conveying some of these messages, and is therefore in contravention of s. 13, as well. On the other hand, there is no evidence that tri-cityskins.com was anything more than the name of a website. It is not a person or group of persons acting in concert within the meaning of s. 13. As a result, I find that the complaint against the respondent identified as Tri-City Skins.com has not been substantiated. A. Question 1 - Is material sent over the Internet a communication within the meaning of s. 13 of the Act? [9] Section 13 was originally enacted well before the pervasive global growth of the Internet, and there was no mention of the Internet to be found in the provision itself. In 2001, however, s. 13(2) was amended by the Anti-Terrorism Act, S.C. 2001, c.41, s. 88, to provide that, for greater certainty, the proscribed discriminatory practice extended to matter that is communicated by means of a computer or a group of interconnected or related computers, including the Internet. This amendment came into force on December 23, 2001 (P.C. 2001-2425, SI/2002-16, Canada Gazette Part II, Vol. 136, No. 1). [10] Mr. Warman viewed the material that is the object of his complaint, on the Internet, in 2001 and 2002, before and after the coming into force of the enactment amending s. 13. As the Tribunal in Warman v. Kyburz 2003 CHRT 18, 43 C.H.R.R D/425 (C.H.R.T.) at para. 15 (Kyburz) noted, however, whether or not any of the communications occurred before the amendment is ultimately of no consequence. The earlier version of s. 13 was found to encompass Internet communications in both Citron v. Zündel (2002), 41 C.H.R.R. D/274 (C.H.R.T.), and in Schnell v. Machiavelli and Associates Meprizer Inc. et al. (2002), 43 C.H.R.R. D/453 (C.H.R.T.). In my view, the issue is now settled. Matter that was communicated over the Internet, whether before or after the amendments, is subject to s. 13 of the Act. B. Question 2 - What is the Internet material that allegedly violates s. 13? (i) Material on the tri-cityskins.com website [11] The Commission produced copies of web pages from the tri-cityskins.com website that Mr. Warman testified having viewed between October 2001 and February 2002. The Internet address of the home page was www.tri-cityskins.com. A copy of the home page, printed out on February 2, 2002, was entered into evidence. [12] The page has a banner at the top stating, Tri-City Skins Website is BACK, followed by a warning that Contained in these pages are views that many will find offensive. WE DON'T GIVE A FUCK!!!. Mr. Warman testified that by clicking on the word enter at the bottom of the page, he was redirected to the Main page. A banner at the top of the Main page said Tri-City Skins - Welcome to Our Official Website. Between two Canadian flags, the word Skinheads appears, near the top. On the left side of the page is a column of icons (or links) that when clicked, send the visitor to other parts of the website. One of those links connected to a part of the website that itself provided links to Good Sites, which included the sites for the Canadian Ethnic Cleansing Team, the Toronto Skinheads, the Heritage Front, and the White Aryan Resistance. There is also a link to a site called www.whitesonly.net. The icon that linked you to this site consisted of a rope with nooses at both ends along with the phrase Bring Your Nigger...We Got the Rope. [13] Another page on the tri-cityskins.com website that could be accessed by clicking a link button on the main page, is entitled ...Of the Month. This linked page sets out featured songs, quotes, sites, jokes, and pictures of the month. The December 2001 joke of the month was: What do you call 6 nigger's [sic] hanging from a tree?? An Alabama wind chime. [14] The picture of the month contained two photos; one of a man wearing a type of turban, accompanied by the description This is a Sikh, and another photo, this time of a bearded man carrying a farm animal, also wearing a similar form of headdress, with the description This is a Muslim. Both photos were followed by the following caption: Please beat accordingly. Brought to you by the Don't Beat a Sikh foundation. [15] The tri-cityskins.com website contained several pages devoted to jokes, which are entitled Nigger Jokes, Jew Jokes, and Other Ethnic Jokes. All could be accessed by clicking the Joke Page link from the Main page. The Commission filed copies that were viewed and printed out by Mr. Warman on October 13, 2001. There are numerous entries found on these pages. These are only a few examples of the jokes found on the Nigger Jokes page: Q: What has four fuzzy legs and one black arm? A: A happy pitbull. Q: Why are a nigger's eyes red after sex? A: Mace. Q: What's missing from the unemployment line in Harlem? A: 100 ft of chain, and an auctioneer. The Jew Jokes web page contains about 25 entries, beginning with the following: Q: What was the best thing to ever come out of Auschwitz? A: An empty train. Q: What did the German kid get for Christmas? A: G.I. Jew and an easy bake oven. Q: How do you fit 100 Jews into a Volkswagen? A: Two in the front, three in the back, and 95 in the ashtray. Q: What's the difference between a Jew and apple pie? A: Apple pie doesn't scream when you put it in the oven. The Other Ethnic Jokes page relates to persons of various ethnic backgrounds. The following is a sample: Q: What's the most confusing day on the Indian reserve? A: Fathers' Day. Q: Why doesn't Mexico have a good Olympic team? A: Anyone who can run, jump or swim is already in the U.S. Q: Why do Pakis stink? A: So the blind can hate them too. [16] Another page on the tri-cityskins.com website was used to market White Power, Racist, and Skinhead Shirts. Instructions were provided on how to place orders for these shirts and listing the available sizes. The shirts displayed for sale bore inscriptions on the front including Aryan, ACAB - ALL COPS ARE BASTARDS, SKINHEADS, and Aryan Women Unite. [17] One also found on the tri-cityskins.com website a page entitled HEROES AND WARRIORS OF OUR MOVEMENT. A printout from December 8, 2001, contains photos of Adolf Hitler, Rudolf Hess, and Ernst Zündel, amongst others. In the side margins, the Nazi SS symbol and an Iron Cross with a swastika in the centre are displayed. [18] There is a link on the main page of the tri-cityskins.com website entitled Weekly A.D.V. Broadcast - updated. Mr. Warman testified that clicking on this icon brought up a page on the tri-cityskins.com website containing the text of the Weekly American Dissident Voices Broadcast. He produced printouts of five issues of this Broadcast that were posted on the webpage, from August 2001 until February 2002. Each Broadcast consisted of a fairly long article (8 to 13 pages) ostensibly drafted by William Pierce, who, according to Mr. Warman, was the head of the National Alliance, the largest neo-Nazi group in the United States at the time. [19] In one Broadcast, Mr. Pierce advises the white citizens of South Africa that the only viable long-range solution for [them] is to get rid of all the Blacks and other non-Whites. They should force them out, sterilize them, kill them - otherwise [they] will lose [their] country. He goes on to state elsewhere in this article: If we want our kind to survive on this planet longer than another generation or two, then we must clear the cobwebs of Christian superstition and Jewish propaganda from our minds and face the facts without being squeamish. One fact is that we must have exclusive possession of those portions of this planet which constitute suitable habitat for us. Another fact is that in order to obtain and maintain that exclusive possession, we must be prepared to kill, to annihilate, any and all competitors. A third fact is that racism is God's gift to any race that wants to survive. Racism is healthy and natural and essential, and we had damned well better clear of [sic] minds of the Judeo-Christian lie that it is evil and wicked and nasty and low-brow. (emphasis added) [20] In another Broadcast, viewed and printed out by Mr. Warman on October 13, 2001, Mr. Pierce describes the Clinton administration as the most Jewish government America ever had, which he then contrasts to the administration of George W. Bush: The people out front, in the public's eye, are Gentiles - of a sort: a mulatto secretary of state, a White gentile secretary of defence, a Negress as a national security adviser, a White Gentile Treasury secretary - and, except for Federal Reserve Chairman Alan Greenspan, no really prominent Jews. That is, there are few Jews out front, where they can be seen. But the Jews are there, just as in the Clinton government, but working behind the scenes. [21] In a subsequent Broadcast, viewed by Mr. Warman on January 22, 2002, entitled The Culture of Lies, Mr. Pierce dismisses what he refers to as the so-called Holocaust and the central myth of `six million' innocent, blameless Jews killed in `gas ovens' by the wicked Nazis. He ends the article by writing about Jewish media control in America that has allowed the culture of lies to prevail. [22] Another Broadcast, which Mr. Warman viewed on February 2, 2002, referred to Harvard University law professor Alan Dershowitz. Mr. Pierce wrote: Fundamentally, he's not a lawyer or a civil libertarian; he's not an American; he's not even a fellow human being. Alan Dershowitz is a Jew, and that says it all. [23] The article goes on to criticize Mr. Dershowitz's position allegedly in favour of the use of torture by the U.S. Government to obtain confessions following the 9/11 attacks, by stating: But I'll guarantee you that ultimately it's not just Muslims that Dershowitz and his tribe have in mind when they advocate torture; it's you and I; it's everyone who stands in the way of the total supremacy of their tribe. (ii) Material on the wpcect.com website a) The Links page [24] The Commission filed with the Tribunal some excerpts from the wpcect.com website, including a copy of the Links page, which was printed out on January 18, 2002. The banner across the Links page reads C.E.C.T., an acronym for Canadian Ethnic Cleansing Team. To the left of it is a logo comprised of a half-maple leaf and a half-Celtic cross. On the right side is another logo, which is only partially visible on the printout, but appears to resemble a maple leaf superimposed over a swastika. [25] On the left side of the page is a column containing the following words: Start, News, Articles, Thoughts, Info, Flyers, Webhosting, Chapters, Newsletter, Contact, and Links. Mr. Warman testified that this column was found on all of wpcect.com's pages. Clicking on the words would open a corresponding page. For instance, clicking on Links from any page on the website would bring you to the Links page that was filed in evidence. [26] Down the centre of this Links page is a series of icons that when clicked, connect you to their corresponding websites. These linked sites include tri-cityskins.com, White Aryan Resistance, the American Nazi Party, National Skinhead Front (whitevictory.com), and hatecore88.com. Mr. Warman testified that the number 88 is often used by neo-Nazi groups. The letter H is the 8th letter in the alphabet and 88 (denoting HH) refers to the first letters in the words of the phrase Heil Hitler. There is a heading found above all of these icons, which explains that these linked websites are Domains we are hosting for free. b) The Thoughts page [27] Mr. Warman produced a printout of an article entitled Intro to Racial Woes. He had previously viewed it by clicking on the caption identified as Thoughts that was found on the left-side column of the wpcect.com website. On the printout that was filed at the hearing, half the date had been cut off, but Mr. Warman testified that he had viewed and printed out the text on October 13, 2001. It contains the following passage, which relates to immigration policies in Canada: Over 35% of illegal aliens are convicted and/or wanted criminals. You see, now in Canada we don't do background checks on our Future potential citizens. For some strange reason we just let them into the country on the honor system. They are given every opportunity in the world and they just sit back and hope that none of the Third world rejects commit violent crimes such as rape, murder, and even terrorism. Not only are the blacks and Asians polluting our cities with gangs and drugs, they are sleeping with our women and doing everything possible to ensure that the white race does not exist through interracial breeding. They are being followed by young white teens that through the media think it's cool to be black. These wiggers, who I refer to as race traitors, have no idea that they are just a part of the plan that's only purpose is to exterminate the white race. The Jewish media, who control everything that we see and hear through T.V. and radio, heads up this war against us. When, as a united race, will we learn our lesson? Because of recent events over the Millenium's Terrorist's problems, I don't think I need to mention anything about the east Indians. They are filthy and are nothing but bad for a young country like ours. If we keep letting all these alien come into Canada. Don't be surprised if one day Canada isn't known for our great living and beautiful country side, but as a country that aids and abets criminals, and a place where rapists and murders can hide out from the laws of their own country. Wait a minute. That has already happened. (emphasis added) The article concludes with the following statement: [...] What are you willing to do for your country and the Proud White Race? I for one am willing to go all the way and do whatever it be that is needed of me to do to insure that the white race prevails as I am sure we will. The text is signed: White Pride Worldwide 14/88 -WHITE POWER CANADA: THE REICH WAY! c) The newsletter - Vinland Voice [28] Another of the words found on the left-side column of the wpcect.com website is Newsletter. Mr. Warman testified that by clicking on it, he was redirected to a website called vinlandvoice.com. The opening page of that website welcomes the visitor to the homepage of the Vinland Voice, which is described as a newsletter that is meant to reach out to White Canadians and keep them up with issues in their communities. The text goes on to thank the supporters of the Vinland Voice and closes with the expression RAHOWA. Mr. Warman stated in his evidence that this term is used by white supremacist group members to greet each other. It is an acronym for Racial Holy War. [29] Mr. Warman testified that when he proceeded further into the vinlandvoice.com website, he came across multi-page newsletters that were apparently published on a weekly basis. The earliest copy of the Vinland Voice newsletter filed in evidence is dated August 30, 2001. [30] Mr. Warman explained that when he discovered the Vinland Voice site, he registered himself as a subscriber under a pseudonym, and began receiving the newsletters on a weekly basis, by electronic mail (e-mail). He adopted two methods of compiling the material from the newsletters that he believed offended s. 13 of the Act. In some cases, he cut and pasted the content of the newsletters from their location on the vinlandvoice.com website into a word processing file. In other cases, he simply printed out the e-mail messages containing the newsletters. The copies of the Vinland Voice newsletter that were filed at the hearing were in one or the other of these formats. [31] I have no evidence before me to suggest that these copies were inaccurate representations of the actual newsletters communicated through the Internet. As I discuss later in this decision, Terry Wilson, a detective with the police service of London, Ontario, also testified about having viewed these newsletters on the Internet and having received them by e-mail as well. I am satisfied that these exhibits are true depictions of the actual newsletters that were posted on the vinlandvoice.com website. [32] Every edition of the Vinland Voice in evidence contained an invitation on the first page to Check out our CECT flyers. The newsletters all ended with a link to www.wpcect.com, ie. the Canadian Ethnic Cleansing Team's website. In some issues, the link was accompanied by the Canadian Ethnic Cleansing Team's combined maple leaf-Celtic cross logo. [33] The newsletters often reprinted articles from other news sources, to which some editorial comment was added. For instance, Newsletter no. 3, dated August 30, 2001, reproduced what appears to be a wire service article regarding the arrest in Toronto of an individual who was believed to be a member of an Islamic terrorist group involved in the bombings of U.S. embassies. The excerpt was prefaced by the headline, surprise, surprise, this is why immigration MUST stop!. [34] The newsletters also often contained letters and commentary expressing disdain towards members of Anti-Racist Action (ARA). Mr. Warman testified that this is an anti-racist group with chapters throughout North America, whose objective is to combat neo-Nazi and racist groups. [35] The writers of the Vinland Voice occasionally wrote pieces regarding some of their personal experiences. For instance, in Newsletter No. 3, there is an unsigned article describing what took place at a birthday party for one of the TCS [Tri-City Skins] boys, held it seems at a bar in Kitchener, Ontario. Several paragraphs into the article, the author writes the following: [...] my buddy and I were outside with a few skinbyrds talking and having a smoke when a dumb monkey ass looking nigger came to the bar with a bat. LOL, 1 nigger 1 bat against 15 skins, that's why, and for no other reason, was this nigger particularily stupid. All the rest of the cities sewage chose to stay acros the street. Just as we were about to approach the nigger to show him what he can do with the bat the owner of this fine establishment jumped in and disarmned him, warning us that cops were coming back up the stairs. They were everywhere. [sic throughout] [36] Mr. Warman opted to highlight Newsletter No. 5 in his testimony. This issue, dated September 14, 2001, dealt extensively with the terrorist attacks in the U.S. that had taken place three days earlier. The opening column's headline was Editor's Voice. The name of the author, at the bottom of the text, was WPCanada. As will be discussed later in this decision, Mr. Warman contends that WPCanada stands for White Power Canada, and that it is in fact a pseudonym used by Mr. Richardson. The article reads as follows: Hmmmm, Where to start? I have so much to say and the newsletter is already so huge. So I will try to keep it short. As I mentioned above, you will see opinions from many different people and I am defiantly not saying mine is the correct One but it is mine and now you are stuck reading it. If there was ever a time to stand up and have your voice heard, it is now. War is on, and the gloves are off. I have held various opinions since the tragedy in The United States. But even though my anger and views have differed from one extreme to another I still stay focused on one thing. A lot of white folk died tragically, and as always the Jews are mixed up in it. I do not take kindly to innocent whites dying for nothing and especially because of those dirty Jews. And yes I hold ALL Muslims personally responsible as well. Even the American government, for bringing this war onto American soil by supplying Jews with weapons to destroy the Muslims. It is now time to take back our streets. I am proclaiming my own act of war. I encourage all racialists and esp. all C.E.C.T. members to do the same. There are many targets on Canadian soil such as B'nai Brith offices, Mossad temples and as far as I am concerned any Jew/Arab temple, building, house and even cars. There are no innocent Jews especially in a time of war. I ask that you mourn the loss of many of our kin that perished in NY and Washington and I want you to channel that anger and use it to fight our enemies. The world as we know it has changed, from this day on everything as we know it will be different. Many more whites will die fighting the Muslims and Jews. Perhaps this will be the final war? I don't know. What I do know is we must never let this happen to us again. We need to call upon our governments and stop all immigration into North America. We need to deport all Jews, Muslims, Arabs or any other known terrorist group or religion. By allowing them to live in our country and seek refuge we are allowing them to use our own resources i.e. (welfare or public records etc.) against us. These are our streets, this is our land and the time to Fight is NOW. This is in fact our RAHOWA! United we will win. WPCanada Onward to victory! (emphasis added) [sic throughout] [37] Several pages later in this issue of the newsletter, a press release from B'nai Brith Canada dated September 11, 2001, was reproduced. The press release condemned the 9/11 attacks, as well as the subsequent dancing in the streets of the West Bank by Palestinians that had reportedly taken place. The following editorial comment was added underneath the reproduction of the press release: Obviously the Jews are trying to pass the buck and direct attention elsewhere. Well Fuck them all. We know who is responsible and they WILL pay on behalf of our American Brothers. I urge all Canadians who care at all to take action against B'nai Brith and all other Jew organizations. Certain cocktails are very cheap. DEATH TO ZOG! Mr. Warman testified that ZOG stands for Zionist Occupational Government. A few paragraphs down, the newsletter states, SURGEON GENERAL'S WARNING: Jews are hazardous to other Species. [38] Newsletter no. 6, dated September 21, 2001, continued on the same theme of the 9/11 attacks. On the first page is an article that is presented under the heading Editor's Voice. The author is apparently WPCanada, whose name is printed at the end of the article. The author puts forth how he would have written President George W. Bush's speech to the U.S. Congress following the attacks: [...] To the people responsible for the US tragedy, I say this: Are you fucking kidding me? Are the turbans on your heads wrapped too tight? Have you gone too long without a bath? Do you not know whom you are fucking with? [...] Have you forgotten history? What happened to the last people that started fucking around with us? Remember the little yellow bastards over in Japan? We slapped them all over the Pacific and roasted 2 million of them in their own back yard. That's what we in America call a big ass barbecue. Ever seen Texas on a map? Ever wonder why it is so big? Because we wanted it that way. Mexico started jacking around with the Alamo and now they cut our lawns. (emphasis added) [39] Issue no. 7 of the Vinland Voice is dated September 28, 2001. The newsletter begins with four short sentences: Jews are responsible for the immigration policies that let Arab bombers into the country. Jews are responsible for the foreign policies that made Arabs want to attack us. Jews are responsible for obscuring these facts in their media. End ZOG, end terrorism. This passage is followed by a sentence modelled on the American pledge of allegiance: I pledge allegiance to the race-mixing rag, of the Jew-nited States of America, and to the New World Order for which it stands; one conglomerate, under Zionism, with Tyranny and Oppression for all. [40] Newsletter no. 12, dated December 10, 2001, contains an Editor's Voice column criticizing Israel's policies in the Middle East. But in addressing the question, the editor refers to Jews as Conspirators of Rome and Betrayers of Christ. He goes on to write that he supports the suicide attacks against the Israeli people, and suggests that maybe England would like to allocate a piece of its own land to house the Zionist plague. He adds that he, for one, would put them in warm waters, somewhere in the tropical Pacific. [41] In the same issue of the newsletter, the editor writes that he is sending a big hello to Mr. Warman for having filed a human rights complaint against the Canadian Ethnic Cleansing Team. The editor identifies himself at the end of these comments as Totenkopf. The reference is apparently to an initial complaint that Mr. Warman filed with the Commission in 2001, in advance of the present complaint, which came in February 2002. The article in the newsletter contains Mr. Warman's home address. It further states that we extend our thanks to that Jewish lawyer and we give [Mr. Warman] 300,000 real reasons - and 5.7 million made-up ones - to support the [Canadian Ethnic Cleansing Team]! It will be a gas!. The message ends with a final note addressed directly to Mr. Warman: Richard, we added you to our Christmas Card list this year. Who knows, we might even send you compensation in the amount of vacation pay your family didn't get while working at Auschwitz. C. Question 3 - Is the material likely to expose a person or persons to hatred or contempt by reason of the fact that they are identifiable on the basis of a prohibited ground of discrimination? [42] In order to address this question, the meanings of the words expose, hatred and contempt must be considered. The Canadian Human Rights Tribunal, as well as the Federal and Supreme Courts of Canada, have had occasion to consider the sense of these terms in previous decisions. The Tribunal in Schnell, supra at paras. 85-89, provided the following synopsis of their findings: In the first case dealing with s. 13(1) of the Act, Taylor and the Western Guard Party v. Canadian Human Rights Commission and Attorney General of Canada (1979), T.D. 1/79, the Human Rights Tribunal referred to the Oxford Dictionary as a source, defining hatred as: active dislike, detestation, enmity, ill will, malevolence. and contempt as: the condition of being condemned or despised; dishonour or disgrace. Expose is a more passive word as opposed to incite and indicates that an active effort or intent on the part of the communicator or a violent reaction by the recipient is not envisaged. Rather, expose means to leave a person unprotected; to lay open to ridicule, censure or danger; creating the right conditions for hatred or contempt to flourish leaving the identifiable group open or vulnerable to ill feelings or hostility or putting them at risk to be hated. The Human Rights Tribunal in Nealy v. Johnston (1989), 10 C.H.R.R. D/6450, when dealing with a complaint under s. 13(1) of the Act accepted these definitions and elaborated somewhat on hatred and contempt. In the Tribunal's view, hatred involves feelings of extreme ill will towards another person or group of persons. To say that one hates another means that one finds no redeeming qualities in the latter. Contempt suggests looking down upon or treating as inferior the object of one's feelings. This reflects the dictionary definition of despise, dishonour or disgrace. But, hatred is not co-extensive with contempt. Hatred in some instances may be the result of envy of superior qualities such as intelligence, wealth and power, which contempt, by definition, cannot be. The Nealy Tribunal also went on to say that the use of the word 'likely' in s. 13(1) means that it is not necessary to prove that the effect will be that those who hear the messages will direct hatred or contempt against others. Nor is it necessary to show that, in fact, anyone was so victimized. Taylor was appealed to the Supreme Court of Canada [1990] 3 S.C.R. 892, the main issue being the constitutionality of s. 13(1) of the Act relative to the s. 2(b) of the Charter. The Supreme Court, in concluding that s. 13(1) did not contravene the Charter, endorsed the Taylor and Nealy definitions of hatred and contempt. The Court concluded that s. 13(1) refers to unusually strong and deep-felt emotions of detestation, calumny and vilification. (i) The tri-cityskins.com material [43] I find that the material found on the tri-cityskins.com website is likely to expose persons who are non-Christian or non-Caucasian, to hatred or contempt. Black persons and people of the Jewish faith are particularly laid open to ridicule, ill feelings, or hostility, creating the right conditions for hatred or contempt against them to flourish. [44] The supposed humour found in the Jokes and the ...Of the Month pages unquestionably exposes these groups to hatred and contempt. The use of the term nigger in these jokes, with its inherent connotation of slavery, segregation, and racism, in and of itself displays hatred and contempt in regard to black people. Remarks portraying Blacks as rapists, slaves, and food for vicious dogs denote feelings of extreme ill will against them. These jokes blatantly treat black persons with disdain and as being inferior. The humour demeans the suffering of Blacks and suggests that they have no redeeming qualities. [45] The riddles that make cruel light of the genocide of Jews in Nazi concentration camps are similarly demeaning and disdainful. Other racial, religious, or ethnic groups (Aboriginal people, Latin Americans, South Asians, Muslims) are not spared the disparagement either. These statements all serve to dehumanize persons belonging to these various groups. [46] I should note that I have only excerpted but a handful of the jokes found on this website. The remainder all follow the same themes, replete with hatred and contempt directed at the groups identified. [47] The extreme ill will and malevolence towards black persons pervades other parts of the tri-cityskins.com website as well. The Pierce articles encourage white South Africans to get rid of all Blacks and other non-Whites, and to force them out, sterilize them or kill them. His articles urge those whom he is addressing to be prepared to kill, annihilate, any and all competitors. Such statements (exhorting the death, sterilization, or expulsion of non-Caucasians) denote extreme ill will and hatred against non-Caucasians, and suggest that the victims of this violence lack any redeeming qualities, thereby dehumanizing them. [48] Mr. Pierce's attempts at portraying Jewish persons as enemies of the state, working behind the scenes, and controlling media, serve to develop and encourage envy, mistrust or resentment of them, which in turn breeds hatred against them. These hateful messages are combined with signs of contempt: [Dershowitz]'s not even a fellow human being. [He] is a Jew and that says it all. Mr. Pierce reinforces his contempt directed towards Jewish persons and further exhorts hatred against them, by asserting that Dershowitz and his tribe advocate widespread torture of all non-Jews who resist Jewish supremacy. [49] The website manages to encourage the visitor to feel contempt against these groups even through its links to other websites. It invites visitors to travel, with one click of a mouse button, to the site of the Canadian Ethnic Cleansing Team. Taking into account the opinions expressed in the Pierce articles, it is quite easy to draw the connection between this group's name and a call for the forceful exclusion from Canadian society of non-Caucasians. Another of the linked websites is named whitesonly.net, which has a logo that unabashedly harks back to the lynching of black persons. [50] I find, therefore, that the tri-cityskins.com website contains messages that are likely to expose persons who are non-Christian (namely of the Jewish and Muslim faiths) or non-Caucasian, to hatred and contempt on the basis of their race, colour, religion, or national/ethnic origin. (ii) The wpcect.com material [51] I have reached the same conclusion with respect to the messages found on the Canadian Ethnic Cleansing Team's website, wpcect.com, including the Vinland Voice newsletters. [52] Mr. Kulbashian contends that the Vinland Voice material should not be considered to form part of the Canadian Ethnic Cleansing Team's website since it was found on a separate website, vinlandvoice.com. I do not agree. It is of no consequence that the material happens to be on a website the name of which does not incorporate the CECT abbreviation. The fact is that when clicking on the newsletter icon on the web pages of wpcect.com, visitors are brought directly to the Vinland Voice page. Once there, they are plainly told that they have arrived at a site that is run by the CECT. The second paragraph on many of the newsletters invites visitors to check out our CECT flyers, and to visit the CECT store. On the final page of every issue, the link to wpcect.com is prominently displayed. I am satisfied that the material found on vinlandvoice.com is an integral part of wpcect.com's Internet material. [53] The Intro to Racial Woes article on wpcect.com's Thoughts page is littered with statements of extreme ill will to various ethnic, racial, and religious groups. Blacks and Asians are accused of polluting our cities with gangs and drugs and sleeping with our women. East Indians are treated as filthy and undesirables. Jews are again portrayed as enemies of society who control everything that we see and hear and who head up the war against us, meaning the white race. In this manner, the article has the effect of inspiring fear and extreme resentment against these groups, which is likely to expose them to hatred and contempt. [54] The same themes wind their way through the newsletters. The account, in Issue No. 3, by an unnamed individual, of his exploits involving a black person who confronted him at a bar, is laden with epithets, such as dumb monkey ass looking nigger, stupid, and sewage, that are indicative of extreme contempt for black persons. [55] The Editor's Voice column of September 14, 2001, however, did not limit the target of its hate-ridden attacks to Blacks. Just about every non-Caucasian, and non-Christian group fell victim. Dirty Jews and Muslims are blamed for the death, on September 11, 2001, of thousands of white folk, which is likely to inspire hatred against these groups. The article then goes on to irresponsibly call on racialists and Canadian Ethnic Cleansing Team members to engage in violent acts against not only buildings and institutions of the Jewish and Arab communities in Canada, but individuals as well, since there are no innocent Jews. These comments unquestionably expose the members of these groups to hatred, contempt and real physical danger, by suggesting that all manifestations of the Jewish and Arab communities are legitimate targets of indiscriminate retributory violence. The comments also convey a message that these groups lack any redeeming qualities. The author further exposes Jews, Muslims and Arabs to contempt by equating them with the terrorists responsible for the 9/11 attacks. His call for the deportation of these groups implies that they lack redeeming qualities and are unfit to live in our country. [56] The incitation to violence was not restricted to the Editor's Voice column. Later in the same issue, an editorial comment is included that obviously encourages attacks by Molotov cocktail against Jewish organizations. The Jewish community in Canada is again laid open to danger by these hateful comments, which are compounded later in the same newsletter by the snide remark that Jews are hazardous to other Species, a dehumanizing and contemptuous statement that inspires hatred against them. [57] The September 21, 2001, issue opted to mock the religious headdress of Muslims, to trivialize the death of millions of Japanese during the Second World War, and to exacerbate this insult by adding a malevolent racial epithet (yellow bastards). These disrespectful remarks serve to dehumanize these groups and thereby expose them to contempt. [58] The next issue of the newsletter (September 28, 2001) continued to pursue the theme of blaming the recent terrorist acts on the alleged Jewish control over the U.S., which the newsletter described as the Jew-nited States of America. These comments again serve to expose persons of the Jewish faith to contempt and hatred by seeking to channel against them the horror and fear felt by many in the wake of 9/11. [59] Mr. Kulbashian argued that these and other similar remarks made in the Vinland Voice, constituted political discourse and were not intended to expose any designated groups to hatred or contempt. Intent to discriminate, however, is not a pre-condition to a finding of discrimination (Ontario Human Rights Commission and O'Malley v. Simpson-Sears Ltd., [1985] 2 S.C.R. 536 at 549-50; Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892 at 931-34). Moreover, the language of s. 13 is clear, in that it is the effect of messages that has attracted the attention of Parliament. The question to be asked is not whether the conveyor of the message intended to communicate hate or contempt, but whether the message itself is likely to expose persons belonging to the identifiable groups to hatred or contempt. If indeed the newsletter's content was intended to express a supposed political opinion, the message could have been communicated without resort to the extremist and denigrating language that pervades the various editions of the newsletter that were entered into evidence (see Canada (Human Rights Commission) v. Canadian Liberty Net, [1992] 3 F.C. 155 at para. 57 (F.C.T.D.)). [60] The same can be said of the Vinland Voice editor's criticism of Israel's policies set out in Newsletter no. 12. The writer resorts to denigrating language against Jewish people, describing them as a Zionist plague. This characterization, along with their depiction as Betrayers of Christ, could likely incite Christians and others to feel hatred and contempt against Jews. This inference can easily be drawn when considering the context of this article. It was preceded in the same newsletter by a rant against Mr. Warman in which victims of the Holocaust were cruelly mocked: Vacation pay... for working at Auschwitz; It will be a gas - which I take as a reference to the gas chambers used in Nazi death camps; 300,000 real reasons and 5.7 million made-up ones - which is meant to suggest that the Holocaust did not take place, or that the death toll was grossly exaggerated. In my view, these remarks have the effect of exposing Jewish persons to sentiments of disdain and contempt. [61] For all of the foregoing reasons, I find that the messages found on the Canadian Ethnic Cleansing Team's websites, wpcect.com and vinlandvoice.com, are likely to expose non-Christians and non-Caucasians, to hatred and contempt on the basis of their colour, religion, or national/ethnic origin. From now on, in this decision, I will use the term Hate Messages to refer to this material, as well as those messages found on the tri-cityskins.com website that I addressed earlier. [62] According to s. 13(1) of the Act, the communication of hate messages must occur repeatedly to constitute a discriminatory practice. I note that in the present case, Mr. Warman and Mr. Wilson had no difficulty surfing their way to the websites in question, and receiving successive instalments of the Hate Messages on their computers on an ongoing basis over a period of several months. In my view, since the Hate Messages could be viewed at any time by anyone using the Internet, they were indeed being communicated repeatedly. (iii) The evidence of Dr. Frances Henry [63] The Commission had Dr. Frances Henry testify at the hearing as an expert in racism and hate propaganda. In my view, her report and testimony consisted essentially of her opinion about the ultimate question before the Tribunal. She did not provide the Tribunal with any significant insight into the stereotypical or racial aspects of the Hate Messages and how these aspects could expose persons to hatred or contempt, certainly no more so than the Tribunal can assess for itself or can garner from the body of jurisprudence relating to s. 13 of the Act. Moreover, in the course of her cross-examination, she acknowledged that her studies were in the areas of racism and how it manifests itself, not specifically in the realm of hate propaganda at issue in the present case. [64] Dr. Henry's evidence has therefore had no bearing on my final disposition of this case. D. Question 4 - Did Mr. Kulbashian or Mr. Richardson, alone or in concert with each other or others, repeatedly communicate the Hate Messages, or cause them to be so communicated? (i) Evidence gathered by Mr. Warman [65] Mr. Warman and the Commission claim that Mr. Kulbashian and Mr. Richardson were involved in various ways in the communication of the Hate Messages via the Internet. This allegation is based on evidence gathered by Mr. Warman, as well as the London Police Service. He submits that in order to avoid being identified, Mr. Kulbashian used the pseudonyms Alex Krause and Totenkopf in his activities, and that Mr. Richardson went by the names James Scott and WPCanada (an abbreviation for White Power Canada). [66] In the course of his monitoring of the websites on which the Hate Messages had been found, Mr. Warman sought to learn the identity of the person or persons who operated them. The websites were identified by domain names (ie. tri-cityskins.com, wpcect.com, vinlandvoice.com). Domain names must be registered with a domain name registration service. According to Mr. Warman, one of the largest such operations is run by an organization known as register.com. This firm also offers an on-line service, called a Who-is search, that enables someone to submit the domain name of a website and generate the names of its contact persons. Mr. Warman conducted such a search in October 2001, which yielded the following results: Tri-cityskins.com: The record regarding its domain name was created on March 6, 2001. The Registrant was listed as Tri-City Skinheads, with the declared address being 14 Eighty-Eighth Avenue, Kitchener, Ontario 5M4RTIES. The name given for the website's Technical Contact person was Skinheads, Tri-City. Mr. Warman believes that this information is clearly fictional. The street name is a reference to the number 88, which, as mentioned earlier, allegedly signifies Heil Hitler. The postal code mimics the word smarties. The name provided as the website's Administrative Contact is Public/Press Relations - CECT, Totenkopf. Mr. Warman testified that Totenkopf means death head in German, and is symbolized by a skull and cross-bones. This was the logo used by the Nazi SS-Panzer divisions in World War II. The Administrative Contact's address is listed as P.O. Box 1061, 31 Adelaide Street East, Toronto, Ontario. The website's domain server is identified as Affordable-Space.com. Wpcect.com: The record regarding this website's domain name was created on February 7, 2001, and had just been updated on October 3, 2001, when Mr. Warman conducted his Who-is search. The Registrant is shown as C.E.C.T., and its declared address is P.O. Box 1061, 31 Adelaide Street East, Toronto, which is identical to the above noted address of tri-cityskins.com's administrative contact, Totenkopf. The Administrative, Technical, and Billing Contacts for Wpcect.com are listed as being the same person: WPCANADA, Totenkopf, with the same P.O. Box address mentioned above. The website's domain server is also identified as Affordable-Space.com. [67] Mr. Warman filed in evidence a printout of a page from the wpcect.com website, which declares that the C.E.C.T. finally has a P.O. Box. This statement is signed Totenkopf, and the postal box address is identical to that found on the Who-is searches referred to above. In the Contact Information section of the wpcect.com website, there is a table indicating that for public/press relations, organization information, or to submit tips that could help us out in our mission, one should send an e-mail message to Totenkopf@wpcect.com. For internal affairs and joining if you are not already a member of a Pro-White organization, e-mails should be addressed to WPCanada@wpcect.com. The Canadian Ethnic Cleansing Team's post office box information is also reprinted on this page. [68] Mr. Warman testified that he conducted a Who-is search with respect to Affordable Space.com's website as well. The administrative contact's address was the same as for tri-cityskins.com and wpcect.com: P.O. Box 1061, 31 Adelaide Street East, Toronto. [69] Mr. Warman's research also led him to a website of a student-run film festival that had taken place in May 2001. The organizers of the festival gave special thanks on their website to the server hosting the site, Alexan Kulbashian. Mr. Warman then conducted a Who-is search of the festival's website, which revealed that the site's domain server was affordable-space.com. [70] Mr. Warman testified that to his knowledge, domain servers are used at an intermediary level. They enable the websites of domain name registrants to be accessible to the public via the Internet. Mr. Warman did not seem entirely confident in this explanation, and aside from his basic familiarity with the Internet as a frequent user, he did not profess to be an expert in the area, nor did he testify as such. However, the Respondents did not lead any evidence to contradict Mr. Warman. Moreover, it is obvious from Mr. Warman's documents that a domain server has a significant role to play in the operation of a website, so much so that the identification of the domain server warrants mention on the Who-is registry. It is noteworthy that in the case of both tri-cityskins.com and wpcect.com, Affordable Space.com was their domain server. [71] Mr. Warman's research also led him to enter the name Alexan Kulbashian into the Google Internet search engine, which scanned the Internet for any site containing these key words. The search results included a site where a résumé of a person named Alexan Kulbashian had been posted. The details appearing on this résumé are consistent with other personal details about the respondent, Mr. Kulbashian, that are in evidence. I am satisfied that this is his résumé. [72] Mr. Warman's search was conducted in December 2002, but the résumé itself bears no date. It details, under the heading experience, Mr. Kulbashian's involvement, from 1999 onwards, with Affordable Space.com, which is described as a website hosting, design, and technical support firm. The résumé explains that Affordable Space.com started off as a private project and then turned into a business, hosting over a thousand accounts, and that at the moment I am working on a 24/7 technical support availability for the company. [73] On the basis of all the information he has collected and put together, Mr. Warman is of the belief that Mr. Kulbashian was involved in the provision of web server hosting services, through an enterprise known as Affordable Space.com, and that wpcect.com as well as tri-cityskins.com were among the websites hosted by Mr. Kulbashian. Mr. Warman submits that these elements are sufficient to establish the connection between Mr. Kulbashian and the Hate Messages. (ii) Evidence gathered by the London Police Service [74] The Commission relies on evidence collected during a criminal investigation to further establish the link between Mr. Kulbashian and the Hate Messages. This evidence, it is argued, also establishes the connection to Mr. Richardson. The Commission called Terry Wilson, who worked as a police detective with the police service of London, Ontario, during the same period that Mr. Warman had viewed the Hate Messages on the Internet. Mr. Wilson worked within the hate crime unit, and his investigations included monitoring Internet websites and Internet relay chat lines (also known as instant messaging), where people communicate directly on-line to each other via the Internet. He was aware that some of the websites he was monitoring belonged to organizations that were based in the London-Kitchener-Waterloo area. [75] Mr. Wilson adopted a pseudonym and began participating in some of the chat lines he was monitoring. One of the participants on the chat line being run through the tri-cityskins.com website used the name coxswain24wpcanada. Mr. Wilson initiated a conversation by e-mail with this person, who informed him that he was located in London, Ontario, and that he belonged to an organization, the Canadian Ethnic Cleansing Team, that had several members in London. Mr. Wilson wrote that he wanted to join too. On August 22, 2001, Mr. Wilson received an e-mail in response, informing him that there would be a meeting that evening. The sender of the e-mail gave him his telephone number in London and signed the message James. [76] In verifying the location for the telephone number, Mr. Wilson noticed that the address corresponded to that of an apartment complex where a building superintendent had previously filed a complaint with the police, alleging that someone had defaced the building's hallways and elevators with stickers bearing racist messages. Mr. Wilson met with the building superintendent who produced the lease for the premises where the telephone number had been assigned. There were two co-tenants indicated: James S. Richardson and a woman, whose identity need not be revealed in this decision. The building superintendent said they had been residing there since November 2000. [77] Sometime after initiating his e-mail communications with the person named James, Mr. Wilson's e-mail address somehow got on the Canadian Ethnic Cleansing Team's mailing list, which began sending him the Vinland Voice newsletter by e-mail. When Mr. Wilson viewed the September 14, 2001, issue of the newsletter, (which I have already determined contains some of the Hate Messages in this case), he opened a separate criminal investigation on what he perceived as death threats found therein. [78] Mr. Wilson obtained a search warrant for the apartment in question, and executed it on September 28, 2001. Mr. Richardson was found in the apartment when the police entered and was arrested. He was charged with uttering threats against property and persons, and counselling the indictable offences of murder and of property damage. [79] Mr. Wilson testified about having found a large flag with a Nazi swastika insignia in the premises. There was also a bomber jacket with a patch labelled Tri-City Skins on one side. On the other side of the jacket, there was a patch with the half-Celtic cross/half maple leaf logo that was associated with the Canadian Ethnic Cleansing Team, as had been displayed on wpcect.com. Mr. Wilson also found perforated sheets that are used to print business cards with a computer's printer. The cards had already been printed. Canadian Ethnic Cleansing Team! In partnership with the National Skinhead Front was inscribed in the centre of each card. In the lower corner appeared the name WPCanada, followed by Recruiting Director. The cards had yet to be separated along their perforations, suggesting perhaps that they had been printed on the premises. [80] A police crime analyst specializing in electronic evidence was involved in the search operation. He seized a computer found in the apartment, and once back at the police station, made a mirror image of its hard drive and examined its content. Amongst the directories on the drive was one that contained the logs of Internet relay chats in which the user of the computer had participated. These logs were organized into folders that were identified by the name of the participant who had initiated a particular chat session. The logs are set out in a manner similar to the script of a play. When participants chat, their name appears first, followed by the statement that they have typed in. Every participant's comments can be viewed by all the persons taking part in the chat discussion. [81] One of the logs found on the seized computer was called #wpcanada. Amongst the participants in the discussion on this log is someone going by the name of WPCanada. During one session that took place at 2:00 AM on September 4, 2001, WPCanada says that he is signing out and going to sleep. One of the other participants, called DeadGrl, replies by stating that she waves at James and says buh bye. In another session, the name of Sheila Copps, who is a former Member of Parliament from Hamilton, comes up. WPCanada then adds that she is from my town. Mr. Wilson testified having viewed Mr. Richardson's driver's licence at the time of the arrest. The address shown on the licence was in Hamilton. The documents regarding Mr. Richardson's release following the arrest show that he was required to reside at the same Hamilton address as indicated on his driver's licence. [82] During another chat session, the log shows WPCanada typing in the word away, which is used on chat discussions to indicate that a person has stepped out of a session. About one hour later, someone using the name Totenkopf joins the session and writes, Hey James, wake up. No one responds, so Totenkopf then types in Okay... then go to sleep. In a subsequent exchange, a participant called TankTCS informs WPCanada that he has a Nazi shirt for you James. WPCanada responds, Ok. The same conversation continues at a later point. TankTCS asks, James, what ones [shirts] do you want? WPCanada responds, I want both black. [83] On September 13, 2001, TankTCS enters the session by writing, James...how are you? WPCanada responds by typing that he is fighting with his woman, and refers to the same first name as that of the woman who was the co-tenant of the London apartment where Mr. Richardson was arrested. WPCanada then goes on to write that he was just finishing off the Voice, adding that it's a biggie. The Commission points out that the Vinland Voice article that led to Mr. Richardson's arrest appeared on the Internet the following day, September 14, 2001. That Editor's Voice article was signed WPCanada. [84] There are several other entries on the chat logs where WPCanada is referred to by the other participants as James. [85] In another session, WPCanada converses with someone who is using the name Bones2001, regarding the wpcect.com newsletter. WPCanada tells him that he should write an article for us, and suggests that if he wants to receive the newsletter by e-mail, he should send a message to cect@wpcect.com, and I will hook you up. [86] One of the other chat logs is labelled Ihatejews. The Commission filed an excerpt from a session that took place around 1:30 AM, on September 14, 2001. A participant in this session explains that he had just read the CECT newsletter that you had put out a couple of days earlier and had really appreciated it. WPCanada responds to this comment by saying, Wait until you see tomorrows [sic] [...] a CECT declaration of war against the B'nai Brith, Jews, Muslims. Mr. Warman points out that this reflects the actual content of the Vinland Voice article that was posted on September 14, 2001. As this relay chat was effectively being conducted the night before the publication of the newsletter, Mr. Warman believes that WPCanada's advance knowledge of its content demonstrates that he must have been its author. [87] Interestingly, amongst the various files found on the computer that was seized in the London apartment was a word processing file entitled vv5. A copy of the file was produced at the hearing. It consists of the entire text of the September 14, 2001, issue of the Vinland Voice (Newsletter #5) that Mr. Warman and Mr. Wilson had received by e-mail and had viewed on the Vinland Voice website. The computer's records showed that this file had been last modified on September 14, 2001, at 3:45 AM. This supports the inference that Mr. Richardson had been in possession of this edition of the newsletter prior to its distribution, and that he was directly involved in its subsequent communication via the Internet. [88] The various chat logs record numerous entries by WPCanada that clearly indicate his active involvement with the production of the Vinland Voice newsletter: We have a weekly newsletter called the Vinland Voice; I was finishing the Vinland Voice off; [...]finishing the webpage for the Vinland Voice, a weekly white newspaper that I do; I was just finishing off the homepage for the Vinland Voice. [89] In reviewing the logs, Mr. Wilson noticed that when persons would join an Internet relay chat, a code was recorded on the log, which contained the name of their Internet service provider (ISP) through which these persons were able to access the Internet. WPCanada's ISP was a firm named Execulink. Mr. Wilson obtained a warrant and seized Execulink's records as they pertained to these relay chat exchanges. When WPCanada joined a chat session on the evening of September 13, 2001, a code from Execulink was recorded on the #wpcanada chat log. Execulink confirmed to Mr. Wilson that this code related to an Internet Protocol address that had been assigned to one of its clients whose user name was Cox88. Their records further showed that the actual name of this client was James Richardson. The contact information that he had provided to Execulink showed his street address as being that of the apartment in London where Mr. Wilson had found and arrested the respondent, Mr. Richardson, on September 28, 2001. [90] Taking all of these circumstances into account, on the balance of probabilities, I am persuaded that the person using the pseudonym WPCanada was in fact the respondent, James Richardson, and that Mr. Richardson was actively involved in the editing and production of the Vinland Voice newsletter. I am also satisfied that, prior to his arrest, Mr. Richardson was the individual behind the articles, editorial comments, and other messages that were placed on the Vinland Voice's website under his pseudonym, WPCanada, or generally as the newsletter's editor. In particular, I am convinced that Mr. Richardson, as editor of the Vinland Voice, posted on the website the account of the Tri-City Skins party that took place in Kitchener. I am also convinced that he wrote the September 14, 2001 article relating to U.S. terrorist attacks, the call for the use of certain cocktails against Jewish organizations, and the Surgeon-General's warning about Jews. [91] Interestingly, in the first issue of the Vinland Voice following Mr. Richardson's arrest (dated October 6, 2001), WPCanada no longer appears as the editor of the Vinland Voice. In this edition and the several other editions from December 2001 to January 2002 that were introduced in evidence, the editor's articles are signed Totenkopf, or on occasion Alex Krause. As I explain below, I am convinced that these were in fact pseudonyms used by Mr. Kulbashian. In my view, the change in putative authorship that occurred after Mr. Richardson's arrest on September 28, 2001, further establishes that he was involved in the production of the newsletter until that point. (iii) Link between Mr. Richardson and Mr. Kulbashian [92] During the course of Mr. Richardson's arrest in the London apartment, he asked to speak to his lawyer by telephone. His hands were already handcuffed but he told Mr. Wilson that the lawyer's number was stored on the speed-dial memory of the phone. Mr. Wilson pressed the indicated button on the phone and put the handset up to Mr. Richardson's ear. As soon as the party at the other end answered, Mr. Richardson shouted into the handset, Get rid of all the shit! Mr. Wilson, realizing that Mr. Richardson had misled him into calling someone other than his lawyer, immediately hung up the phone. Some time later, the phone rang. Mr. Wilson answered. The caller asked Mr. Wilson who he was, and then, after using some foul language, the caller hung up. [93] Mr. Wilson testified that when he returned to his office later that day, he received a call from someone who identified himself as Alex Krause. The caller said that it was he who had telephoned to the London apartment earlier. He stated that he was a member of the Canadian Ethnic Cleansing Team and the Tri-City Skins, and insisted that the criminal case against Mr. Richardson was groundless. [94] Mr. Richardson's arrest became a principal topic in the October 6, 2001, issue of the Vinland Voice newsletter. In the Editor's Voice column, the indicated author of which is Totenkopf, Mr. Wilson's telephone number was printed and every supporter was urged to call him and express disgust at Mr. Richardson's arrest. An additional remark in the column was addressed personally to Mr. Wilson and made reference to his family. [95] In the apparent belief that the person whom Mr. Richardson had telephoned during his arrest had something to do with the column in question, a colleague of Mr. Wilson's from the London Police Service called the same phone number to complain about the column. Someone named Alex answered, and undertook, after some discussions with the police officer, to remove the article from the newsletter. Mr. Wilson testified that later the same day, the portion of the column relating to him was indeed deleted from the newsletter. [96] Upon further investigation, Mr. Wilson learned that the phone number Mr. Richardson had called during the arrest was listed in Mr. Kulbashian's name, with an address in the North York area of Toronto. Research into Mr. Kulbashian's past led to information that he had once been arrested on a racially-motivated assault charge. Mr. Wilson contacted Toronto police and acquired his identification photo from the arrest. It showed that at that time, Mr. Kulbashian wore on his arm a tattoo of a swastika encircled with the words White Power, as well as a tattoo of a skull and crossbones, which Mr. Wilson recognized as a Nazi-era totenkopf or death head. [97] Mr. Wilson's investigation eventually led him to conclude that Totenkopf and Alex Krause were pseudonyms for Mr. Kulbashian, and that he had also been involved in the publication of the September 14, 2001, Vinland Voice articles. Mr. Wilson therefore sought and obtained warrants for the arrest of Mr. Kulbashian (on charges similar to those filed against Mr. Richardson) and for the search of his residence at his parents' home in North York. The warrants were executed on January 30, 2002. During the search, t-shirts with logos referring to the Skinhead movement were found in his room, along with several individual business cards. One of the cards was marked CECT, Totenkopf, Public/Press Relations. A notepad was also seized bearing numerous doodles of swastikas, nooses with the words hang them high, as well as Heil Hitler, niggers, and Aryan Power. Mr. Kulbashian's first name Alexan had also been written, but with the X stylized in a form that looked like a slightly misshapen swastika. [98] Mr. Kulbashian was transported to London Police Service headquarters, where he was interviewed by Mr. Wilson. The interview was recorded on videotape, and a transcript of the interview was later prepared by the secretarial staff of the London Police Service's Crime Division. Excerpts of the transcript were entered into evidence at the hearing. Mr. Wilson testified that it accurately reflects the statements recorded on the videotape. There was no evidence introduced to call into question the accuracy of the transcript. As I have already noted, after the Complainant and the Commission closed their cases, the respondents opted not to lead any evidence. [99] During the police interview, Mr. Kulbashian explained that Affordable Space.com was his server, and that he had been operating it for two years prior to the arrest. He described how he had provided space on his server to the Tri-City Skins group and others, including the National Skinhead Front, and the Canadian National Skinhead Front. These groups used the space to operate their web domains, for a fee of $10 per month. He added that since he was a member of the Canadian Ethnic Cleansing Team, he opted to donate the space for its web domain without charging a fee. The Vinland Voice web site was also hosted on his server. [100] Mr. Kulbashian told Mr. Wilson that of the 80 web sites that were hosted on his server, about 20 were racialist sites. Mr. Kulbashian pointed out that he did not visit or view all of the sites that had opted to use his server, and that Affordable Space.com was not set up to only serve racialist sites. It was meant to offer web space at an affordable price. However, he also acknowledged that he would never sell space to groups affiliated with the Anti-Racist Action group. Were he to ever have learned that such an organization had registered space on his server, he would have exercised his power to remove it from the server and refunded the fee. [101] Interestingly, in a relay chat conversation that took place on September 6, 2001, which was recorded on the fdajews log found on the computer seized in the London apartment, a participant named fdajews asked wpcanada (Mr. Richardson) how it was that Alex was giving all these people web space, post office boxes, and so on. Mr. Richardson replied that he spends a lot of his personal dough on donating web space, adding that we are the best web hoster in our movement and that it is through donations and dedication that the service is provided. [102] Mr. Kulbashian told Mr. Wilson, during the police interview, that he ran his web hosting services through a server computer that was physically located in the United States. He did so in part because it was cheaper and more advantageous from a technical perspective, but also as a means to avoid the reach of the Canadian Human Rights Act. He explained that he was familiar with a decision of the Tribunal that had resulted in the closure of a Canadian server. He therefore figured that by plugging the server in the States, he would not have to follow the Canadian law on what I do with my server. [103] Mr. Kulbashian also explained during his police interview that he had designed the template for the Canadian Ethnic Cleansing Team website (wpcect.com). For this reason, his logo, which consisted of a death head skull and crossbones together with the word Totenkopf underneath, could be seen on the left side of the website's pages. As for the written material that was posted on the site and the Vinland Voice newsletter, he acknowledged that he was the author of any material signed Alex Krause, and at least a portion of what had been signed Totenkopf. All email messages sent to the address totenkopf@wpcect.com were redirected to him. [104] It is worth noting that on the home page of vinlandvoice.com, the website where the newsletters can be viewed, there is a message thanking Totenkopf our webmaster amongst others, for helping us out and for his continuing support. [105] In the end, the Crown prosecutor apparently decided to withdraw the criminal charges against Mr. Richardson and Mr. Kulbashian before going to trial. According to Mr. Wilson, the Crown concluded that there was no reasonable expectation of conviction on the charges laid against them. (iv) Print media articles about Mr. Richardson and Mr. Kulbashian [106] Articles from several south-western Ontario newspapers and magazines were entered into evidence. One of them was published in the September 20, 2001, edition of The Kitchener-Waterloo Record, and was written by journalist Brian Caldwell. He reported on his interview of two white supremacists named James Scott, 27, and Alex Krause, 20. By comparison, at the time of the article's publication, Mr. Richardson was 27 years old and Mr. Kulbashian was two months shy of his 20th birthday, based on their dates of birth as they appear on the exhibits relating to their arrests. [107] On October 3, 2001, the same journalist wrote an article in the The Record outlining the details surrounding Mr. Richardson's arrest. The reporter also gave an account of his interview with Alex Krause, of Toronto, who claimed that he and Mr. Richardson were the only formal members of the Canadian Ethnic Cleansing Team, which they created as an information network for white supremacists around the country. [108] The September 20, 2001, interview with Brian Caldwell became a topic of discussion on the chat logs that were found on the computer seized in the London apartment. On the #wpcanada log, Mr. Richardson (a.k.a. WPCanada) can be seen telling another participant that Brian Caldwell had called his mother's house looking to interview him. He later writes that Alex and he did a 45 minute interview with the reporter. [109] In another article, published in the November 29, 2001, issue of Now Magazine, based in Toronto, someone using the name Alex Krause was interviewed. The article's headline was Skinheads on the March - Attacks in Kitchener have Anti-racists Worried. Krause was described in the story as a member who runs the server that the Tri-City Skins et al. use to run their web sites. [110] While I am mindful that reports by journalists of others' statements should be treated with a fair degree of circumspection, I am also aware of the Tribunal's authority under s. 50(3) to accept evidence, irrespective of whether it would be admissible in a court of law. This is a principle that would also apply, incidentally, to the admissions and declarations against interest made by Mr. Kulbashian in the police interview transcript. The connection between the information found in the media stories on the one hand, and the chat relay logs on the other, lends further support to the contention that Mr. Richardson and Mr. Kulbashian were closely involved with the websites through which the Hate Messages were communicated. (v) The Tribunal's findings regarding Mr. Richardson and Mr. Kulbashian [111] Taking all of the evidence into account, I have made the following findings with respect to Mr. Richardson and Mr. Kulbashian and their level of involvement with the Hate Messages: Mr. Richardson and Mr. Kulbashian were members of the Canadian Ethnic Cleansing Team; Mr. Kulbashian operated a firm, under the name Affordable Space.com, which provided web hosting services for websites that included tri-cityskins.com, wpcect.com, and vinlandvoice.com; Mr. Richardson and Mr. Kulbashian contributed to the content posted on the Canadian Ethnic Cleansing Team's website, namely its Vinland Voice newsletter, under the pseudonyms WPCanada and James Scott (Mr. Richardson), as well as Totenkopf and Alex Krause (Mr. Kulbashian); Mr. Richardson was the author of the September 14, 2001, article relating to the September 11, 2001, terrorist attacks, which is one of the communications that I have found to comprise the Hate Messages. It is evident from the chat relay logs that he drafted the text of the article and posted it on the website; Mr. Richardson, in his capacity as editor of the Vinland Voice up until his arrest on September 28, 2001, posted the editorial comments found in the newsletter that I have determined to form part of the Hate Messages in this case; Mr. Kulbashian (under the pseudonyms Totenkopf and Alex Krause) assumed the functions of editor and contributor to the Editor's Voice and other editorial comments in the Vinland Voice, following Mr. Richardson's arrest. Mr. Kulbashian, in this capacity, authored the material communicated in Newsletter #12 (December 12, 2001) that I have determined to form part of the Hate Messages in this case. There is insufficient evidence to indicate that either Mr. Richardson or Mr. Kulbashian were involved in drafting or otherwise contributing to any of the material posted on the tri-cityskins.com website. However, Mr. Kulbashian was aware that persons or groups of persons acting in concert were using his web services to communicate messages that contravened s. 13 of the Act, which included the material posted on the tri-cityskins.com website. One quarter of the websites that Mr. Kulbashian hosted on his server were, as he acknowledged, racialist in nature. Mr. Kulbashian admitted during the taped police interview that he intentionally used a server that was physically situated in the United States in a deliberate effort to avoid being subject to the Canadian Human Rights Act. According to s. 13(3) of the Act, an owner or operator of a telecommunication undertaking through which hate messages are communicated, is not in breach of the Act by reason only that its facilities were used by other persons for the transmission of the material. Mr. Kulbashian cannot benefit from this exemption. Aside from the fact that I find he was actively involved in the preparation of the content placed on the Canadian Ethnic Cleansing Team's Internet newsletter, the evidence is that he encouraged other groups, which he himself described as racialist, to use his services. I am convinced that he knew exactly the kind of material that these organizations would have been posting on the Internet, including the portions of the Hate Messages that were found on the tri-cityskins.com website hosted by his firm, Affordable Space.com. It appears that he even allowed these websites to share Affordable Space.com's post office box. Mr. Kulbashian cannot therefore claim that the Hate Messages were communicated over his server by reason only that he happened to be its owner. On the contrary, he fostered and encouraged the use of his computer server for the communication of the Hate Messages by these groups. [112] I therefore find that Mr. Kulbashian and Mr. Richardson, individually and in concert, communicated or caused to be communicated repeatedly through the Internet, matter that is likely to expose persons to hatred or contempt based on their religion, race, or ethnic/national origin. Mr. Warman's s. 13 complaint against Mr. Kulbashian and Mr. Richardson has been substantiated. [113] In their cross-examinations of Commission witnesses, Mr. Kulbashian and Mr. Richardson occasionally suggested that they had been wrongly accused and that in fact, other individuals had been involved in building and maintaining these websites. Neither of them, however, opted to lead any evidence to support these suggestions. [114] The ultimate burden obviously rests on the complainant and the Commission to establish their case, on a balance of probabilities. But where the prima facie case has been made out, it is incumbent upon a respondent to provide a reasonable explanation demonstrating that the alleged discrimination did not occur as alleged or that the conduct was somehow non-discriminatory. [115] From my earlier discussion on the evidence, it is clear that a prima facie case has been established against Mr. Kulbashian and Mr. Richardson. Did they put forth a reasonable explanation? Both gentlemen indicated at the outset of the hearing that they looked forward to presenting their versions of the facts when their turn would come up. But when this opportunity finally arrived, they chose not to adduce any evidence. The Tribunal cannot take stock of mere hints or innuendos that may have been tossed in with their leading questions during their cross-examination of Commission witnesses, if there is ultimately no evidence introduced to sustain these assertions. This is not a reasonable explanation. E. Question 5 - Has the complaint been substantiated against the other named respondents (Affordable Space.com, Canadian Ethnic Cleansing Team (CECT) and Tri-City Skins.com)? (i) Affordable Space.com [116] I have already determined that Mr. Kulbashian operated a firm under the name Affordable Space.com, which provided web hosting services for websites that included tri-cityskins.com, wpcect.com, and vinlandvoice.com. It is not clear from the evidence whether Mr. Kulbashian operated this business as a sole proprietorship, a corporation, or in some other manner, but there was some indication that after his arrest, Mr. Kulbashian transferred Affordable Space.com's operations to a third party. Irrespective of the precise legal form of the business, however, I am prepared to find that it was a person within the meaning of s. 13 of the Act, capable of engaging in the discriminatory conduct contemplated therein. [117] Affordable Space.com did not formally appear at the hearing, but did it have sufficient notice of these proceedings? The evidence, which ranges from Mr. Kulbashian's résumé and his declaration during the police interview, to his involvement on the film festival website, makes it obvious that he was the principal - if not the sole - operator of Affordable Space.com. Mr. Kulbashian did not present any evidence to demonstrate that his role within the business was somehow different from the picture drawn by the Commission and the Complainant. Mr. Kulbashian was aware of the complaint filed against Affordable Space.com, and considering his key role in this firm, I am satisfied that Affordable Space.com had sufficient notice of these proceedings. [118] Given that Affordable Space.com provided the web services that enabled the Hate Messages to be disseminated over the Internet, it is my finding that Affordable Space.com caused the Hate Messages to be communicated, within the meaning of s. 13 of the Act. [119] Furthermore, I do not believe that Affordable Space.com operated a communication undertaking that could benefit from the exception of s. 13(3). Considering Mr. Kulbashian's major role in Affordable Space.com's operations, and how he actively involved himself in and encouraged the communication of the Hate Messages over its server, Affordable Space.com cannot claim that the messages were communicated by reason only that its facilities were used by others. The complaint against Affordable Space.com has been substantiated. (ii) The Canadian Ethnic Cleansing Team [120] I am satisfied on the evidence presented that an organization existed at the time of Mr. Warman's complaint called the Canadian Ethnic Cleansing Team. The wpcect.com and vinlandvoice.com web pages alluded to the existence of the group. Mr. Kulbashian acknowledged during his police interview that he was involved with the group, as did Mr. Richardson in the chat relay logs. [121] Just as in the case of Affordable Space.com, there is no evidence before me that this group of persons has any formal legal existence. But, as the Tribunal pointed out in Nealy, supra, this changes little. A group of people accepting a common political and social agenda who see themselves as part of an institution or movement may constitute a group of persons working in concert, for the purposes of s. 13. I find this definition applicable to the Canadian Ethnic Cleansing Team. [122] Although the Canadian Ethnic Cleansing Team did not formally appear at the hearing, did it have sufficient notice of these proceedings? Mr. Kulbashian and Mr. Richardson were primary members of the Canadian Ethnic Cleansing Team, as the police interview, the chat log discussions, and the business cards seized during their arrests would bear out. [123] As co-respondents to the complaint, Mr. Kulbashian and Mr. Richardson were of course personally aware of the complaint against the Canadian Ethnic Cleansing Team. I am therefore satisfied that the Canadian Ethnic Cleansing Team was given sufficient notice of these proceedings. [124] A substantial portion of the Hate Messages was posted on the Canadian Ethnic Cleansing Team's websites (wpcect.com and vinlandvoice.com). Consequently, I find that the Canadian Ethnic Cleansing Team engaged in a discriminatory practice by communicating or causing these messages to be communicated repeatedly over the Internet. The complaint against the Canadian Ethnic Cleansing Team has been substantiated. (iii) Tri-city Skins.com [125] I have no evidence before me to indicate that Tri-city Skins.com - or more accurately tri-cityskins.com - was anything more than a domain name of a website. It was allegedly used by the Tri-City Skins, which according to Mr. Warman and Mr. Wilson, was a group of persons based in southern Ontario. However, the Tri-City Skins group was not named as a respondent, and I have no evidence regarding its structure. [126] The situation with respect to tri-cityskins.com differs from that of Affordable Space.com. Despite the presence of .com in its name, the evidence is that Affordable Space.com is the name of a business operated by Mr. Kulbashian. In contrast, based on the evidence before me, tri-cityskins.com is just the name of a website. [127] The Commission appeared to argue in its final submissions that since the website's name is similar enough to the group's, the Tribunal should make a finding against the Tri-City Skins. I do not agree. It would be unfair and inappropriate for a Tribunal to issue decisions against groups or persons who have not been named as respondents in a complaint. A web domain was named as the respondent. Only a person or group of persons acting in concert can be found to have discriminated under s. 13. In my view, a web domain is not a person or group of persons acting in concert, within the meaning of this provision. [128] Even if I were to accept the Commission's proposition that the designation in the complaint of Tri-CitySkins.com enables me to make findings against the Tri-City Skins, my decision would still not change. There is no indication that the Tri-City Skins group was ever given notice of these proceedings even in the guise of Tri-City Skins.com. Pursuant to the information provided by the Commission, the Tribunal sent correspondence intended for Tri-City Skins.com, including the notices of hearing, to Mr. Richardson and Mr. Kulbashian. The notices were returned by the post office. In Mr. Richardson's case, the envelope was simply marked unclaimed. Mr. Kulbashian's envelope came back with the notation refused - return to sender. Neither one accepted service on behalf of the group or acknowledged that he was in a position to do so. [129] Mr. Richardson admitted to being a member of the Tri-City Skins during his final arguments at the hearing, but I have no evidence of any further involvement, particularly regarding the tri-cityskins.com website. The only evidence linking Mr. Kulbashian to the group is a newspaper report and Mr. Wilson's recollection in his testimony of a comment made by Mr. Kulbashian during an initial telephone conversation, prior to his arrest. While it is true that Tri-Cityskins.com's postal address was the same as that of Mr. Kulbashian's firm, Affordable Space.com, the evidence from the chat log discussions and the police interview indicate that Mr. Kulbashian was allowing his other racialist clients to use his post office box as well. [130] I do not find this evidence sufficient to establish a link between Mr. Kulbashian and the Tri-City Skins group, other than as a simple member like Mr. Richardson, at most. In these circumstances, I do not think that notification of mere members of a group can be construed as official notice to the group. Thus, while Mr. Richardson's and Mr. Kulbashian's presence at the pre-hearing case management conferences and at the hearings themselves makes it clear that they acquired sufficient notice of the proceedings against them personally, I cannot subsume this knowledge with that of the Tri-City Skins. [131] For me to accept the Commission's proposition, it would mean that the Tri-City Skins would be designated as a party to the complaint at the final stages of the inquiry, after all of the evidence has been adduced. This would be unfair and a breach of natural justice. [132] For all these reasons, the complaint against the respondent, Tri-city Skins.com is not substantiated. IV. REMEDIES [133] The Commission and Mr. Warman request that the Tribunal issue several orders pursuant to s. 54 (1) of the Act. A. An order that the discriminatory practice cease (s. 54(1)(a)) [134] Section 54(1)(a) empowers the Tribunal to order a respondent to cease the discriminatory practice, and take measures, in consultation with the Commission on the general purposes of the measures, to redress the practice or prevent it from occurring in the future. [135] Accordingly, I order Mr. Kulbashian and Mr. Richardson, as well as Affordable Space.com and the Canadian Ethnic Cleansing Team, to cease and desist from communicating or causing to be communicated, by the means described in s. 13 of the Act, namely the Internet, any matter of the type contained in the Hate Messages that is likely to expose a person or persons to hatred or contempt by reason of the fact that the person or persons are identifiable on the basis of a prohibited ground of discrimination. B. An order for special compensation (s. 54(1)(b)) [136] Section 54(1)(b) provides that where a victim is specifically identified in the communication that constituted the discriminatory practice, the Tribunal may order the payment of special compensation to the victim, of a sum that is not to exceed $20,000, if the Tribunal determines that the respondent engaged in the discriminatory practice wilfully or recklessly. The Complainant is seeking this special compensation in the amount of $10,000, from Mr. Kulbashian and the Canadian Ethnic Cleansing Team. [137] The Complainant was specifically named in the Vinland Voice newsletter no. 12, of December 10, 2001. I have already determined that the author of the article in question was Mr. Kulbashian. The article posted Mr. Warman's home address and gave thanks to that Jewish lawyer. Mr. Warman is apparently not Jewish but the author obviously perceived him as such. The article went on to make cruel remarks about Holocaust victims, including those that the author assumed were Mr. Warman's relatives. [138] The attack was very personal and Mr. Warman testified that he felt some concern, considering the reference to the murder of Holocaust victims and the posting of his home address in the newsletter. He interpreted the allusion to the death of Jews in the past, as a direct threat to his own personal safety. In my view, and in keeping with my earlier findings regarding the Vinland Voice Newsletter no. 12, this attack was likely to expose him to hatred or contempt on the basis of being identifiable on a prohibited ground of discrimination. It does not matter whether Mr. Warman was in fact Jewish or not. A person who is perceived to have the characteristics of someone who falls within one of the prohibited grounds of discrimination, may be the object of discrimination even though he does not actually have those characteristics (School District No. 44 (North Vancouver) v. Jubran, 2005 BCCA 201 at para. 41, leave to appeal to S.C.C. refused; see also Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City), [2000] 1 S.C.R. 665). Taken in this context, Mr. Warman is in my view, a victim of the Hate Messages that constituted of the discriminatory practice. [139] These statements were unquestionably wilful attacks against Mr. Warman, but I note that this was the only instance where he was specifically identified in any of the Hate Messages. Having regard to all of the circumstances, I order Mr. Kulbashian to pay Mr. Warman the sum of $5,000 as special compensation pursuant to s. 54(1)(b) of the Act. [140] As for the relief sought against the Canadian Ethnic Cleansing Team, I have already found that it was responsible for the publication of the Vinland Voice Newsletter, which contained the attack against Mr. Warman. However, in the joint Statement of Particulars filed by the Commission and the Complainant in advance of the hearing, special compensation pursuant to s. 54(1)(b) was not included in the list of remedies being sought against the Canadian Ethnic Cleansing Team. This remedial claim was introduced for the first time during final submissions. Given the tardiness of the claim, in my view, it would be inappropriate to issue an order for special compensation against this respondent. C. Interest [141] Mr. Kulbashian is ordered to pay simple interest on the award of special compensation calculated on a yearly basis at the Bank Rate (monthly series) established by the Bank of Canada. The interest shall run from the date of the complaint until the date of payment. D. Penalty [142] The Tribunal may order a respondent who engaged in a discriminatory practice as set out in s. 13, to pay a penalty of up to $10,000, pursuant to s. 54(1)(c). Section 54(1.1) spells out several factors that the Tribunal must take into account when deciding whether to make such an order: The nature, circumstances, extent and gravity of the discriminatory practice; The wilfulness or intent of the respondent, any prior discriminatory practices that he has engaged in, and his ability to pay the penalty. The Commission has requested that the maximum penalty be imposed against each of the respondents. (i) Mr. Kulbashian [143] The Commission and Mr. Warman did not establish that Mr. Kulbashian was involved in the drafting or editing of any of the Hate Message material found on the tri-cityskins.com website. For that matter, it was not proven that he contributed any of the Hate Messages that were found on the wpcect.com website or in the Vinland Voice newsletter, prior to Mr. Richardson's arrest. I have found, however, that Mr. Kulbashian contributed to the newsletter's content thereafter by drafting several messages, including the message that was directed against Mr. Warman personally. [144] On the other hand, all of the Hate Messages (including those on the tri-cityskins.com website) were caused to be communicated via the Internet through Mr. Kulbashian's direct involvement, as the provider of web hosting and related technical services. While his participation did not include drafting the many of the Hate Messages, I am persuaded that he caused all the Hate Messages to be communicated, and that he did so wilfully. [145] Mr. Kulbashian argued that his penalty should be reduced on account of his conduct, once informed of the nature of the material being posted. Thus, when Mr. Wilson's fellow police officer called Mr. Kulbashian to complain about the newsletter article that had named Mr. Wilson personally, Mr. Kulbashian had the reference removed from the website within hours. In general, Mr. Kulbashian takes issue with the fact that Mr. Wilson, Mr. Warman, and the Commission did not notify him of any objectionable material having been found on the website, before going ahead and laying criminal charges against him or filing the human rights complaint, as the case may be. Mr. Kulbashian contends that he was too busy to keep track of the material being posted on the Internet through his web server. He claims that if a notice of complaint had been made to him about the Hate Messages, he would have had the material taken off the Internet as promptly as the Vinland Voice article about Mr. Wilson. [146] This argument, however, assumes a false naiveté on Mr. Kulbashian's part. He knew that a good number of clients were racialist. They shared the same post office box as his business, Affordable Space.com. He was a key member of the Canadian Ethnic Cleansing Team. He acknowledged having designed the template for its website, wpcect.com. Moreover, Mr. Kulbashian wrote articles and commentary in its newsletter, the Vinland Voice. The name alone of this group should have alerted him to the possibility that the messages on the website may violate the Act. In addition, as a regular member of the Tri-City Skins, he likely was familiar with the organization's website. Indeed, he was so mindful of the likelihood of his clients' posting hateful messages that one of the reasons he opted to use a computer server situated outside Canada was to evade s. 13 of the Act. [147] It lacks credulity, therefore, for Mr. Kulbashian to come today before the Tribunal and feign ignorance of the nature of the material that was being communicated by way of his web hosting services. On the contrary, the above demonstrates that he was aware of the content of the material, and consciously and deliberately enabled its dissemination. This is wilful conduct within the meaning of the Act. [148] With respect to the existence of prior discriminatory practices, while there was some mention in the evidence of a prior arrest for assault that was allegedly hate related, I have insufficient information from which to draw any conclusions. [149] The Commission did not lead any evidence regarding Mr. Kulbashian's ability to pay the penalty. The Tribunal in Warman v. Kyburz, supra, seemed to accept the proposition that the burden may rest on a respondent to demonstrate his ability to pay the penalty. In that case, however, the Tribunal took into account evidence that was unsworn and untested by cross-examination. Indeed, s. 50(3) of the Act authorizes the Tribunal to accept any evidence and other information, whether on oath or otherwise, that it sees fit, whether or not that evidence or information would be admissible in a court of law. In the present case, although Mr. Kulbashian did not testify, in the course of the hearing process, it emerged that he is a college student in his mid-20's who resides at his parents' home. He is raising a young child on his own. While the available information is not conclusive, I believe that Mr. Kulbashian's financial means are fairly limited, and that his ability to pay is accordingly restricted. [150] Taking all of these factors into account, I order Mr. Kulbashian to pay a penalty in the amount of $1,000. Payment of the penalty shall be made by certified cheque or money order payable to the Receiver General for Canada, and must be received by the Tribunal within 120 days of Mr. Kulbashian's being notified of this decision. (ii) Mr. Richardson [151] There is no evidence of any involvement by Mr. Richardson with respect to the tri-cityskins.com website. I have, however, determined that, up until his arrest, he was directly involved in the drafting, editing, and posting of the Hate Messages in the Canadian Ethnic Cleansing Team's newsletter. The communication of these Hate Messages was obviously wilful. There is no evidence before me of any prior discriminatory practices by him. [152] No evidence was formally adduced with respect to Mr. Richardson's ability to pay a penalty but based on information that was gleaned during the hearing process, I am persuaded that he is a person of very modest financial means. He indicated that he is on a fixed income due to an undisclosed disability. When the Tribunal considered conducting a portion of the hearing in Ottawa, Mr. Richardson made it clear that he lacked the resources to pay for his travel and accommodations. He required the assistance of a parent for transportation from the family's home in Hamilton to the hearing in Oakville. Having regard to all of the circumstances, I order Mr. Richardson to pay a penalty of $1,000. Payment of the penalty shall be made by certified cheque or money order payable to the Receiver General for Canada, and must be received by the Tribunal within 120 days of Mr. Richardson's being notified of this decision. (iii) The Canadian Ethnic Cleansing Team [153] Although the Hate Messages posted on the Canadian Ethnic Cleansing Team's websites were, in my view, somewhat less severe than those found on tri-cityskins.com, the messages exposed persons to hatred and contempt, just the same. These messages were deliberately placed on the Internet, a method that allowed them to be communicated to as large an audience as possible. [154] I have no evidence of whether the group of persons known as the Canadian Ethnic Cleansing Team has ever engaged in any discriminatory practices in the past nor do I have any evidence of its ability to pay. In all of the circumstances, I order the Canadian Ethnic Cleansing Team to pay a penalty of $3,000. Payment of the penalty shall be made by certified cheque or money order payable to the Receiver General for Canada. The Canadian Ethnic Cleansing Team did not formally appear at the hearing, although I have determined that Mr. Kulbashian and Mr. Richardson were key members of this group. I therefore order that the penalty must be received by the Tribunal within 120 days of the date when either Mr. Kulbashian or Mr. Richardson receives this decision, whichever is earlier. (iv) Affordable Space.com [155] Inasmuch as Affordable Space.com was the business through which Mr. Kulbashian provided his web hosting services to the websites that carried the Hate Messages, it is in contravention of the Act to the same extent as Mr. Kulbashian. Thus, I am prepared to impute the wilfulness of Mr. Kulbashian's conduct to that of the business though which he operated. I do not know what Affordable Space.com's ability to pay a penalty may be, nor am I aware of any prior discriminatory practices in which the firm may have been engaged. [156] Having regard to all of these circumstances, I order Affordable Space.com to pay a penalty of $3,000. Payment of the penalty shall be made by certified cheque or money order payable to the Receiver General for Canada. I order that the penalty must be received by the Tribunal within 120 days of the date when Mr. Kulbashian receives this decision. Signed by Athanasios D. Hadjis OTTAWA, Ontario March 10, 2006 PARTIES OF RECORD TRIBUNAL FILE: T869/11903 STYLE OF CAUSE: Richard Warman v. Alexan Kulbashian, James Scott Richardson, Tri-City Skins.com, Canadian Ethnic Cleansing Team and Affordable Space.com DATE AND PLACE OF HEARING: August 31, September 1, 2 and 3, 2004 November 8, 9, 10, 11 and 12, 2004 November 15, 16 and 17, 2004 February 23, 24 and 25, 2005 Oakville, Ontario DECISION OF THE TRIBUNAL DATED: March 10, 2006 APPEARANCES: Richard Warman On his own behalf Monette Maillet/ Valerie Phillips For the Canadian Human Rights Commission Alexan Kulbashian Vahe Kulbashian On his own behalf For the Respondent (Alexan Kulbashian) James Scott Richardson On his own behalf

2006 CHRT 12

CHRT

Warman v. Canadian Heritage Alliance

en

2006-03-13

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6788/index.do

2023-12-01

Warman v. Canadian Heritage Alliance Collection Canadian Human Rights Tribunal Date 2006-03-13 Neutral citation 2006 CHRT 12 File number(s) T1089/7005 Decision-maker(s) Jensen, Karen A. Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE RICHARD WARMAN Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADIAN HERITAGE ALLIANCE Respondent - and - MELISSA GUILLE Respondent RULING 2006 CHRT 12 2006/03/13 MEMBER: Karen A. Jensen [1] The Respondent, Melissa Guille, filed a motion with the Tribunal requesting that the complaint against Canadian Heritage Alliance be dismissed. [2] The parties have very different views about what is required in order to be a person or group of persons acting in concert within the meaning of s. 13(1) of the Canadian Human Rights Act. That provision of the Act declares that it is a discriminatory practice for a person or group of persons acting in concert to communicate, by means of a telecommunication undertaking, messages that are likely to expose persons to hatred or contempt on the basis of an identifiable ground of discrimination. [3] Ms. Guille argues that in order to be properly named as a respondent, Canadian Heritage Alliance must be either a living human being or a corporation. According to Ms. Guille, however, Canadian Heritage Alliance is neither. It is nothing more than a website that she runs, on her own, as a service to dissident writers. [4] The Complainant and the Commission argue that, according to the case law on this point, it is not necessary for an organization to be incorporated in order to be properly included as a party in a s. 13 complaint. Rather, there are other indicia that are used to identify a group of persons acting in concert for the purposes of s. 13 such as a group name, a symbol, letterhead and whether there are officers or leaders of the group. The Complainant and the Commission argue that there is evidence that Canadian Heritage Alliance is more than just an Internet presence. They claim there is evidence that Canadian Heritage Alliance meets most of the criteria for a group acting in concert under s. 13(1). [5] The Complainant has filed an Affidavit in support of his response to the motion. Ms. Guille has also filed an Affidavit in response to that of the Complainant. There are fundamental differences between the two Affidavits. Neither affiant has been cross-examined. [6] Regardless of what the definition of a group of persons acting in concert might be, it is clear from the case law that such determinations must be made on a case-by-case basis and on the basis of adequate evidence. [7] In my view, the question of whether Canadian Heritage Alliance is a group of persons acting in concert to communicate the impugned messages is best dealt with upon completion of a hearing on the merits of the complaint. Then the Tribunal will have the benefit of a full evidentiary record upon which to base its decision. [8] Moreover, it must be noted that the question raised in this motion is not just whether Canadian Heritage Alliance was a group of persons acting in concert, but rather whether it was a group of persons acting in concert to communicate the impugned messages. Therefore, an inquiry into the question of whether Canadian Heritage Alliance is properly named as a Respondent in this complaint will likely involve an examination of other aspects of the complaint such as the communication of the impugned messages, which will be dealt with during the hearing on the merits of the complaint. [9] At the hearing, the Complainant will bear the burden of establishing, on a prima facie basis, all of the constituent elements of a violation of s. 13(1) of the Act including whether a group of persons called Canadian Heritage Alliance acted in concert to communicate the impugned messages. Ms. Guille will then have an opportunity to challenge that evidence and to contest the definition of the term a group acting in concert to communicate. [10] For these reasons, I have decided that the issue of whether Canadian Heritage Alliance is properly named as a Respondent in this case should be decided after a full hearing on the merits of the complaint. [11] Ms. Guille's motion is dismissed without prejudice to her right to renew it at the hearing on the merits of the complaint. Signed by Karen A. Jensen OTTAWA, Ontario March 13, 2006 PARTIES OF RECORD TRIBUNAL FILE: T1089/7005 & T1090/7105 STYLE OF CAUSE: Richard Warman v. Canadian Heritage Alliance and Melissa Guille RULING OF THE TRIBUNAL DATED: March 13, 2006 APPEARANCES: Richard Warman On his own behalf Giacomo Vigna Ikram Warsame On behalf of the Canadian Human Rights Commission Melissa Guille On her own behalf and on behalf of the Respondent

2006 CHRT 13

CHRT

Warman v. Lemire

en

2006-03-14

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6783/index.do

2023-12-01

Warman v. Lemire Collection Canadian Human Rights Tribunal Date 2006-03-14 Neutral citation 2006 CHRT 13 File number(s) T1073/5405 Decision-maker(s) Hadjis, Athanasios Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE RICHARD WARMAN Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - MARC LEMIRE Respondent - and - ATTORNEY GENERAL OF CANADA CANADIAN ASSOCIATION FOR FREE EXPRESSION CANADIAN FREE SPEECH LEAGUE CANADIAN JEWISH CONGRESS FRIENDS OF SIMON WIESENTHAL CENTER FOR HOLOCAUST STUDIES LEAGUE OF HUMAN RIGHTS OF B'NAI BRITH Interested Parties RULING 2006 CHRT 13 2006/03/14 MEMBER: Athanasios D. Hadjis [1] The Canadian Human Rights Commission has brought a motion requesting that the complaint dated September 7, 2003, be amended to add sexual orientation as one of the prohibited grounds on the basis of which the Respondent is alleged to have discriminated against persons or groups of persons. The Complainant has not made any submissions in regard to the motion, but I can safely assume that he endorses the Commission's motion. [2] Respondent Counsel has informed the Tribunal that her client takes no position on the motion. [3] I have reviewed the Commission's motion and its supporting documentation. It is evident that the proposed amendment does not rely on new facts. It stems from the same set of facts already contained in the complaint form. [4] Furthermore, it is not plain and obvious that the amendments to the allegations could not possibly succeed. [5] The Commission's motion is therefore granted. The complaint will be amended to include sexual orientation to the list of grounds on the basis of which the Respondent is alleged to have discriminated against persons or groups of persons. [6] The Respondent had requested leave to file further submissions on his constitutional motion, in the event that the Commission's motion was granted. I have already directed that the constitutional question will be addressed along with all the other final submissions, at the end of the hearing. However, I take it that the Respondent is seeking, in light of the amendment, to complete his Statement of Particulars, Disclosure, and Production, pursuant to Rule 6 of the Tribunal's Rules of Procedure, by also addressing the additional ground of sexual orientation. [7] Accordingly, I direct that the Respondent may do so by the date when he was already scheduled to file his expert reports, April 24, 2006. signed by Athanasios D. Hadjis OTTAWA, Ontario March 14, 2006 PARTIES OF RECORD TRIBUNAL FILE: T1073/5405 STYLE OF CAUSE: Richard Warman v. Marc Lemire RULING DATED: March 14, 2006 APPEARANCES: Richard Warman On his own behalf Giacomo Vigna / Ikram Warsame On behalf of the Canadian Human Rights Commission Barbara Kulaszka On behalf of the Respondent Simon Fothergill On behalf of the Attorney General of Canada Paul Fromm On behalf of the Canadian Association for Free Expression Douglas H. Christie On behalf of the Canadian Free Speech League Marvin Kurz On behalf of the League of Human Rights of B'nai Brith and on behalf of counsel for the Canadian Jewish Congress and the Friends of Simon Wiesenthal Center for Holocaust Studies

2006 CHRT 14

CHRT

Brown v. Canada (Royal Canadian Mounted Police)

en

2006-03-16

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6772/index.do

2023-12-01

Brown v. Canada (Royal Canadian Mounted Police) Collection Canadian Human Rights Tribunal Date 2006-03-16 Neutral citation 2006 CHRT 14 File number(s) T769/1903 Decision-maker(s) Jensen, Karen A. Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE JACQUELINE BROWN Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - ROYAL CANADIAN MOUNTED POLICE Respondent RULING 2006 CHRT 14 2006/03/16 MEMBER: Dr. Paul Groarke [1] The present case was remitted back to the Tribunal by Justice Hansen, on judicial review, to deal with any allowable expenses. The parties have been unable to reach agreement on two claims. [2] I was originally concerned that these are new claims, which are not properly before me. Mr. Gordon has satisfied me, however, that this is not the case. It is merely that the hearing did not proceed to the stage where a proper itemization of expenses could be made. [3] The first claim is for Ms. Brown's initial consultations with Mr. Finding. The Respondent opposes this, on the basis that the decision from Justice Hansen clearly holds that the Tribunal has no power to award costs for legal services provided by a lay person. Mr. Gordon's response is that the initial consultations come within an exception to the general rule regarding legal fees. [4] The difficulty is that the exception applies to legal fees, which are only recoverable under Justice Hansen's ruling if they have been paid to a lawyer. At this point, I can only proceed on the assumption that Mr. Finding was providing legal services. It follows that his fees cannot be recovered. If Mr. Finding was providing some other kind of service, he will have to submit an affidavit outlining the nature of those services. This would be subject to cross-examination. [5] The second matter is a claim for legal fees. This concerns the legal fees that Mr. Gordon charged the Complainant, in making submissions on the issue of damages. I agree with Mr. Gordon that I am bound by my earlier ruling here, in which I held that the Tribunal has the power to award costs for legal fees. [6] The Respondent has nevertheless submitted that any claim for legal fees must follow the Federal Court Tariff. I followed this procedure in Brooks v. Dept. of Fisheries and Oceans, 2005 CHRT 26 (2005/07/12), primarily because it dealt with a complex claim for a large sum. [7] The amount that Mr. Gordon is requesting is relatively small. The significant fact, however, is that it is contested. I agree with the Respondent that the Tariff should be used in cases where the claim is disputed. The alternative is to adopt an ad hoc approach, which is more haphazard and less attuned to the law in the area. [8] The purpose of the Federal Court Tariff is to provide an orderly, principled framework in which disputed claims can be resolved. The provisions of the Tariff are in keeping with the general caselaw and offers a well-considered methodology, which would assist anyone in determining what costs are appropriate. I think it would be a mistake to ignore it. [9] I would accordingly ask Mr. Gordon to submit a Bill of Costs, in accordance with the Federal Court Tariff, along with a letter justifying his claim. This should be submitted to the Tribunal by March 27th. The Respondent will have until April 7th to respond. The Complainant will then have until April 14th for any further submissions. If Mr. Gordon wishes to submit an affidavit from Mr. Finding, I am prepared to change the dates to accommodate that. Signed by Dr. Paul Groarke OTTAWA, Ontario March 16, 2006 PARTIES OF RECORD TRIBUNAL FILE: T769/1903 STYLE OF CAUSE: Jacqueline Brown v. Royal Canadian Mounted Police DATE AND PLACE OF HEARING: March 8, 2006 Ottawa, Ontario RULING OF THE TRIBUNAL DATED: March 16, 2006 APPEARANCES: Charles Gordon On behalf of the Complainant Keitha Elvin-Jensen On behalf of the Respondent

2006 CHRT 15

CHRT

Warman v. Bahr

en

2006-03-22

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6769/index.do

2023-12-01

Warman v. Bahr Collection Canadian Human Rights Tribunal Date 2006-03-22 Neutral citation 2006 CHRT 15 File number(s) T1087/6805 Decision-maker(s) Jensen, Karen A. Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIUBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE RICHARD WARMAN Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - GLENN BAHR AND WESTERN CANADA FOR US Respondents RULING 2006 CHRT 15 2006/03/22 MEMBER: Karen A. Jensen [1] In a complaint dated June 8, 2004, Mr. Richard Warman alleged that the Respondents, Mr. Glenn Bahr and Western Canada for Us, violated sections 12(a) and 13(1) of the Canadian Human Rights Act by communicating and publishing hate messages. The matter is now scheduled for a hearing commencing on May 23, 2006. [2] Mr. Bahr has filed a motion requesting that the hearing in this matter be adjourned pending the outcome of Warman v. Marc Lemire (T1073/5405). In that case, which also involves alleged violations of s. 13(1) of the Act, the Respondent has challenged the constitutionality of sections 13 and 54 of the Act. [3] On December 19, 2005, a direction was provided in Warman v. Lemire indicating that the constitutional challenge would be dealt with in the course of the hearing into the complaint, and no longer as a preliminary matter. On February 23, 2006, the Tribunal granted interested party status to a number of organizations for the purpose of providing their input on the constitutional question (Warman v. Lemire, Ruling 2006 CHRT 8). Hearing dates in this matter have not yet been set. [4] Mr. Bahr has stated that he too intends to challenge the constitutionality of sections 13(1) and 54 of the CHRA. However, he has not yet served Notice of the Constitutional Questions as required by the Tribunal's Rules of Procedure. [5] Mr. Bahr argues that it would be a more efficient use of resources for all concerned to have the constitutional challenge in the Lemire case dealt with first. Moreover, he argues that the issues raised in his complaint are now moot. The Western Canada For Us website was apparently removed in May of 2004 and has not been re-activated. As part of his bail conditions resulting from a charge under s. 319 of the Criminal Code, Mr. Bahr is enjoined from using the Internet in any way. Therefore, the Respondent argues, not only is the allegedly offensive material no longer available to the public, there is very little risk that any further material will be posted in the future. [6] The Complainant and the Canadian Human Rights Commission strongly oppose the motion. They argue that s. 48.9(1) of the Act requires the Tribunal to proceed as expeditiously as the requirements of natural justice and procedural fairness will permit. They further argue that the Tribunal must proceed with an inquiry on the presumption that the legislation is valid until such time as a judicial determination has been made to the contrary. [7] In Leger v. Canadian National Railway Company, Interim Ruling, November 26, 1999 (CHRT); stay application dismissed [2000] F.C.J. 243 (T.D.), this Tribunal held that the exercise of its discretion to grant an adjournment is governed by the rules of procedural fairness and natural justice as well as the regime of the CHRA, which places a premium on the expeditious resolution of discrimination complaints. The Federal Court of Canada has clearly stated that there is a strong public interest in having Human Rights Tribunals proceed as expeditiously as possible (Bell Canada v. Communications, Energy and Paperworkers Union of Canada (1997), 127 F.T.R. 44 at para. 44). [8] Mr. Bahr's arguments regarding procedural fairness and natural justice would appear to be that the costs involved in mounting a constitutional challenge in the present case are prohibitive. He will be put at an unfair disadvantage if he has to muster the resources to do this given what he is facing in the criminal courts. Mr. Bahr argues, therefore, that he should be permitted to await the outcome in Warman v. Lemire before he proceeds with his case. [9] I can appreciate Mr. Bahr's situation. However, there are some difficulties with the motion as it is currently framed. First of all, strictly speaking, the Tribunal's decision in the Lemire matter will not bind the Tribunal in the present case (Donald Lange, The Doctrine of Res Judicata in Canada, 2nd edition, Toronto: 2004, at p. 423). Therefore, unless the constitutional issue in Warman v. Lemire reaches the Federal Court or higher, the Tribunal member in the present case will be required to hear and determine the issues, including the constitutional question, on the merits of this particular case. Thus, there is no particular economy in adjourning the matter until the Tribunal renders a decision in Warman v. Lemire. [10] It follows that there is no guarantee that the Tribunal's decision in Warman v. Lemire will provide Mr. Bahr with what he is seeking. It is only if and when a judicial decision at the Federal or Supreme Court is rendered on the constitutional question, that the Tribunal will be bound by the result and further challenges to the legislation at the Tribunal level will be rendered moot. Adjourning the case until Warman v. Lemire has been conclusively determined would push the hearing dates beyond what is acceptable under the Act, in my view. [11] For these reasons, Mr. Bahr's motion for an adjournment pending the outcome in Warman v. Lemire is denied. signed by Karen A. Jensen OTTAWA, Ontario March 22, 2006 PARTIES OF RECORD TRIBUNAL FILE: T1087/6805 and T1088/6905 STYLE OF CAUSE: Richard Warman v. Glenn Bahr and Western Canada for Us RULING OF THE TRIBUNAL DATED: March 22, 2006 APPEARANCES: Richard Warman For himself Giacomo Vigna/ Ikram Warsame For the Canadian Human Rights Commission Paul Fromm For the Respondent, Glenn Bahr Western Canada for Us No representations made

2006 CHRT 16

CHRT

Warman v. Harrison

en

2006-03-24

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6775/index.do

2023-12-01

Warman v. Harrison Collection Canadian Human Rights Tribunal Date 2006-03-24 Neutral citation 2006 CHRT 16 File number(s) T1072/5305 Decision-maker(s) Jensen, Karen A. Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE RICHARD WARMAN Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CRAIG HARRISON Respondent RULING 2006 CHRT 16 2006/03/24 PANEL/MEMBER: Karen A. Jensen [1] On November 24, 2003, the Complainant filed a complaint against Mr. Craig Harrison alleging that Mr. Harrison had communicated hate messages via the Internet contrary to s. 13(1) of the Canadian Human Rights Act. The matter has been scheduled for a hearing on April 3, 4 and 5, 2006. [2] The Complainant has requested that the hearing be adjourned for approximately four to six weeks. The Canadian Human Rights Commission supports this request. The reason for the request is that Mr. Harrison has denied that he was the person who communicated the impugned messages on the Internet. Therefore, the Commission and the Complainant both intend to present evidence at the hearing that will address the issue of the identity of the individual who posted the impugned messages. They state that they have used their best efforts to obtain this information as quickly as possible, but it has recently become apparent that an additional period of about four to six weeks is needed to obtain the information. [3] Mr. Warman intends to present evidence from a criminal trial involving Mr. Harrison which he states will provide proof that the Respondent was the person who communicated the messages. During the case management teleconference on March 16, 2006 to discuss the Complainant's motion, Mr. Warman indicated that the evidence from the trial will likely provide additional information such as the Internet protocol address of the computer used to communicate the messages in question. This, the Complainant alleges, will assist the Tribunal to determine the identity of the person who communicated the messages. [4] The Commission, for its part, has requested that Bell Sympatico provide information regarding the identity of the user of an e-mail address that accompanied the messages that are the subject of the complaint. It is anticipated that this information will also shed light on the issue of the use that can be made of another person's e-mail address. This, it is argued, is relevant to the identity of the communicator of the impugned messages. [5] The Respondent strongly objects to the adjournment. He argues that the Commission and the Complainant have known for some time now that his defense to the complaint was one of mistaken identity. Therefore, they had ample opportunity to obtain the information they needed before the hearing was due to start on April 3. All of the parties agreed to the dates of April 3, 4 and 5, 2006 and, on that basis, Mr. Harrison made arrangements to take time off work. He cannot change those dates now. [6] The Respondent further argues that the information that is being sought will not establish that he was the communicator of the messages. Finally, Mr. Harrison argues that he has incurred considerable costs as a result of the human rights complaint process. He is fed up and wants to have the matter resolved as quickly as possible. [7] I have some sympathy for the Respondent's position. It would appear that the Commission and the Complainant have indeed known for some time now that the Respondent was denying that he communicated the impugned messages. Mr. Harrison stated that this has been his position since the investigation was conducted by the Canadian Human Rights Commission. In his Statement of Particulars, dated January 13, 2006, Mr. Harrison alleged that he did not post the messages which are the subject of the complaint. [8] In its Reply to Mr. Harrison's Statement of Particulars, the Commission requested further details about Mr. Harrison's claim that he did not communicate the messages. The Commission also stated that, depending on the additional information it received from the Respondent, it might call an expert witness, possibly in computers and websites. [9] In a letter dated February 4, 2006, the Respondent provided further details about his defense. He stated that his computer was not working and was in the repair shop during the time when the messages were posted. He also stated that other people had access to his computer. [10] In his Notice of Motion, the Complainant stated that he received the Respondent's further particulars on February 13, 2006. During the case management call to discuss the motion, Mr. Warman indicated that he requested the information as soon as possible after he received the Respondent's further Particulars. Due to a processing backlog at the agency that provides the information Mr. Warman has requested, he is unable to obtain the information for another four to six weeks. [11] Counsel for the Commission wrote to Bell Sympatico on February 16, 2006 to obtain the information described above. He was recently informed by Bell Sympatico that it will take three to four weeks to obtain the requested information. [12] It is not clear to me why the Commission and Mr. Warman were unable to proceed with their requests for information on the basis of the information that was provided in the Respondent's first Statement of Particulars in January 2006. It was evident from that document that Mr. Harrison was denying that he posted the messages on the basis that they were inconsistent with his values and family background and on the basis that he did not have access to the computer from which the messages were sent during the relevant period of time. I must say that I was not very satisfied with the explanation provided by the Commission and the Complainant during the case management teleconference. [13] Be that as it may, I recognize that the information that has been sought by the Commission and the Complainant is relevant to a key issue in this case - the identity of the person who posted the impugned messages. I also accept the statements of the Commission and Mr. Warman that there is no way to obtain this information by April 3, 2006 when the hearing is scheduled to begin. Therefore, I am satisfied that the request for an adjournment is denied, the Commission and the Complainant will be denied the opportunity to properly present their case. [14] In deciding whether to grant an adjournment, the Tribunal must weigh the goal of resolving human rights complaints in a timely manner against the requirement to be fair to all parties and to provide them with a full and ample opportunity to present their case (Leger v. Canadian National Railway Company, Interim Ruling, November 26, 1999 (CHRT); stay application dismissed [2000] F.C.J. 243 (T.D.)). In this case, Mr. Warman and the Commission are requesting a relatively short adjournment in order to be able to properly present their case. Mr. Harrison may be understandably frustrated by the postponement, but his opportunity to defend against the complaint is not being delayed unduly. [15] For these reasons, the Complainant's motion for an adjournment is granted. The Tribunal Registry is instructed to contact the parties to arrange a teleconference to set new dates for the hearing. Signed by Karen A. Jensen, Member OTTAWA, Ontario March 24, 2006 PARTIES OF RECORD TRIBUNAL FILE: T1072/5305 STYLE OF CAUSE: Richard Warman v. Craig Harrison DECISION OF THE TRIBUNAL DATED: March 24, 2006 APPEARANCES: Richard Warman For himself Giacomo Vigna / Ikram Warsame For the Canadian Human Rights Commission Craig Harrison For himself

2006 CHRT 17

CHRT

Warman v. Guille

en

2006-04-05

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6773/index.do

2023-12-01

Warman v. Guille Collection Canadian Human Rights Tribunal Date 2006-04-05 Neutral citation 2006 CHRT 17 File number(s) T1089/7005, T1090/7105 Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE RICHARD WARMAN Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADIAN HERITAGE ALLIANCE - and - MELISSA GUILLE Respondents RULING 2006 CHRT 17 2006/04/05 MEMBER: Karen A. Jensen [1] I have had the opportunity to review the parties' submissions on the issue of venue for the hearing into this complaint. [2] The complaint involves allegations that the Respondents, Ms. Melissa Guille and Canadian Heritage Alliance, communicated hate messages through an Internet website in violation of s. 13(1) of the Canadian Human Rights Act. The Complainant, Mr. Richard Warman, claims to have viewed the website on a computer in Ottawa, where he resides. Ms. Guille states that her computer location at the time of the alleged communications was in Kitchener or London, Ontario. [3] The Complainant requests that the complaint be heard in Ottawa. In the alternative, he requests that the matter be heard in Toronto. The Canadian Human Rights Commission takes the same position. Ms. Guille requests that the matter be heard in Kitchener or London. In the alternative, she requests that the matter be heard in Toronto. [4] It is the usual practice of the Tribunal to hold hearings in the place where the alleged discrimination occurred. However, this is not a hard and fast rule and the Tribunal strives to accommodate the parties where it is appropriate to do so (Baumbach v. Deer Lake Education Authority 2004 CHRT 13). [5] In Warman v. Lemire 2006 CHRT 7, this Tribunal noted that in cases such as this involving the alleged communication of hate messages over the Internet, it is difficult to fix the location where the discrimination allegedly occurred. Did it occur where the messages were viewed on the Complainant's computer? Or, did it occur in the location of the Respondent's computer where the messages were alleged to have been communicated? [6] In Warman v. Lemire, the Tribunal determined that the place most closely connected with the alleged discriminatory conduct was the greater metropolitan area where the Respondent was located. The Tribunal accommodated both parties' needs with respect to the venue within the greater metropolitan area for the hearing. [7] Arguably, the place most closely associated with the alleged discriminatory conduct in this case is the London area. The Complainant, however, has stated that he would suffer serious hardship if he was required to attend a hearing in the London area. Although a hearing in Toronto would still result in some hardship, it would be less so. In her submissions, Ms. Guille stated that although she would prefer London or Kitchener as the venue for the hearing, she would accept Toronto as an alternative venue. [8] The witnesses and parties in this case are from Ottawa and the London area, with the possibility of an expert witness which has yet to be determined. [9] In view of the above-noted factors, I am of the view that the best way to accommodate the needs of the parties and the witnesses in this case is to hold the hearing in Toronto. Both the Respondent and the Complainant have stated that they would experience significant hardship if the hearing was held in the opposing party's preferred venue and both have proposed Toronto as the alternative to their preferred venue. The Commission is in agreement that Toronto is an acceptable alternative venue. [10] Accordingly, I direct the hearing into this complaint to be held in Toronto. The exact address is to be determined and will be communicated to the parties by the Tribunal at a later time. Signed by Karen A. Jensen OTTAWA, Ontario April 5, 2006 PARTIES OF RECORD TRIBUNAL FILE: T1089/7005 and T1090/7105 STYLE OF CAUSE: Richard Warman v. Canadian Heritage Alliance and Melissa Guille RULING OF THE TRIBUNAL DATED: April 5, 2006 APPEARANCES: Richard Warman For himself Giacomo Vigna/ Ikram Warsame For the Canadian Human Rights Commission Melissa Guille For herself and for the Respondent, Canadian Heritage Alliance

2006 CHRT 18

CHRT

Warman v. Bahr

en

2006-04-05

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6797/index.do

2023-12-01

Warman v. Bahr Collection Canadian Human Rights Tribunal Date 2006-04-05 Neutral citation 2006 CHRT 18 File number(s) T1087/6805, T1088/6905 Decision-maker(s) Jensen, Karen A. Decision type Ruling Decision Content Canadian Human Rights Tribunal Tribunal Canadien Des Droits De La Personne RICHARD WARMAN Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - GLENN BAHR - and - WESTERN CANADA FOR US Respondents RULING 2006 CHRT 18 2006/04/05 MEMBER: Karen A. Jensen [1] This ruling addresses two requests made by the Respondent, Mr. Glenn Bahr, for documents that are allegedly relevant to the issues raised in a complaint against him and another Respondent. [2] The complaint, filed by Mr. Richard Warman, involves allegations that the Respondents, Mr. Glenn Bahr and Western Canada For Us, communicated hate messages through an Internet website in violation of s. 13(1) of the Canadian Human Rights Act. [3] The Respondent Bahr has requested that the Complainant disclose the following documents: the Complainant's speaking notes entitled Maximum Disruption: Stopping Neo-Nazis by (Almost) Any Means Necessary from a speech that he gave at a conference hosted by a group called Anti-Racist Action; the Complainant's contribution to B'Nai Brith's 2005 Audit of Anti-Semitic Incidents; the Complainant's contract with B'Nai Brith for these and other writings; Other writings Mr. Warman may have done for B'Nai Brith. [4] The Respondent Bahr states that these materials are arguably relevant because they may prove that the Complainant has a particular animus against Mr. Bahr that will taint the proceedings. He further states that the materials are relevant to Mr. Warman's credibility. The Respondent Bahr intends to assert that Mr. Warman's complaint was brought in bad faith and is part of a campaign to injure people whose views he opposes. Finally, the Respondent Bahr argues that the fact that the speaking notes were disclosed and admitted into evidence in Warman v. Winnicki (T1021/0205) is highly suggestive of their relevance in this matter. [5] The Complainant and the Commission argue that the material is not arguably relevant since it does not relate to a matter in issue in the complaint. The Complainant is not seeking any remedies for himself in this complaint. The issues to be determined, therefore, are limited to whether the Respondents repeatedly communicated hate messages by means of the Internet and, if so, what the appropriate remedy would be. The requested material is not arguably relevant to these issues. [6] I find that the Respondent Bahr has not established the arguable relevance of the requested material to the issues that are raised in this case. While the threshold for arguable relevance is low and the tendency is now towards more, rather than less disclosure, the nexus between the issues to be proven and the requested material must nonetheless, be demonstrated. [7] The first step in determining whether a document is arguably relevant is to identify the facts that are in issue in the case. The question to be asked is this: what facts must be proved in order to establish or defend against the case before the Tribunal? The central factual issue to be determined in the present case is whether the Respondents, acting individually or in concert, repeatedly communicated by means of the Internet, messages that were likely to expose people to hatred or contempt by reason of the fact that those people are identifiable on the basis of a prohibited ground of discrimination. [8] The Respondent Bahr has argued that the Complainant's credibility is relevant to his motivation for bringing the complaint. However, at this stage of the proceedings, the Complainant's motivation for bringing the complaint is not in issue. It is the Canadian Human Rights Commission that has the power, pursuant to s. 41(1)(d), to dismiss a complaint if it is of the view that the complaint is trivial, frivolous, vexatious or made in bad faith. If the Commission does not exercise its discretion under this provision, and instead refers the complaint to the Tribunal for further inquiry, the Respondent may file an application for judicial review of the Commission's decision. However, the Tribunal does not have the authority to review the Commission's decision to refer the complaint to the Tribunal (International Longshore & Warehouse Union (Maritime Section), Local 400 v. Oster, 2001 FCT 1115 at para. 29). Once the complaint has been referred to the Tribunal, the Tribunal is required, by virtue of section 50(1) of the Act to inquire into the complaint. [9] Thus, the Complainant's motivation for bringing the complaint is not a relevant issue at this stage in the proceedings. Moreover, the fact that the speaking notes were disclosed in Warman v. Winnicki does not mean that the same material must be disclosed in the present case. The arguable relevance of material must be determined on a case-by-case basis, having regard to the issues raised in each case. In Warman v. Winnicki, the Complainant alleged that the Respondent had engaged in retaliatory conduct. The Complainant also made a claim for personal compensation under s. 53 of the Act. There were, therefore, different factual issues to be determined in Warman v. Winnicki than in the present case. The Respondent has not established the arguable relevance of the Complainant's credibility to the issues raised in the present case. [10] For these reasons, I decline to order the disclosure of the documents listed above. I note, however, the Complainant's suggestion in his submissions that some of the requested material is available on the Internet. Although the Respondent is apparently enjoined from using the Internet as part of his bail conditions in a criminal matter, his representative has access to the Internet. Therefore, some of the requested material may be available without this Tribunal's intervention. Signed by Karen A. Jensen OTTAWA, Ontario April 5, 2006 PARTIES OF RECORD TRIBUNAL FILE: T1087/6805 and T1088/6905 STYLE OF CAUSE: Richard Warman v. Glenn Bahr and Western Canada for Us RULING OF THE TRIBUNAL DATED: April 5, 2006 APPEARANCES: Richard Warman For himself Giacomo Vigna/ Ikram Warsame For the Canadian Human Rights Commission Paul Fromm For the Respondent, Glenn Bahr Western Canada for Us No representations made

2006 CHRT 19

CHRT

Warman v. Harrison

en

2006-04-05

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6801/index.do

2023-12-01

Warman v. Harrison Collection Canadian Human Rights Tribunal Date 2006-04-05 Neutral citation 2006 CHRT 19 File number(s) T1072/5305 Decision-maker(s) Jensen, Karen A. Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE Richard Warman Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - Craig Harrison Respondent RULING 2006 CHRT 19 2006/04/05 MEMBER: Karen A. Jensen [1] This is a ruling regarding the production of documents by third parties. The complaint involves allegations that the Respondent, Mr. Craig Harrison, allegedly communicated hate messages over the Internet contrary to s. 13(1) of the Canadian Human Rights Act. [2] The Complainant, Richard Warman, has filed a motion requesting that the Tribunal order a person who is not a party to this complaint, Mr. Marc Lemire, to produce documentation relating to pseudonyms that were allegedly used by the Respondent in this case. The Complainant states that this information is relevant and necessary to prove the identity of the person who communicated the material that is alleged to violate s. 13(1) of the Act. [3] The Complainant argues that the Tribunal has the authority under subsections 50(2) and 50(3) of the Act to order people who are not parties to the proceedings to produce documents. I disagree. [4] Subsection 50(1) of the Act requires the Tribunal to hold an inquiry into complaints that are referred to it by the Canadian Human Rights Commission. Subsection 50(2) provides the Tribunal with the authority to determine all questions of law and fact necessary to determining the matter. Subsection 50(3) grants the Tribunal additional powers to enable it to conduct a thorough inquiry. In particular, subsection 50(3)(a) authorizes the Tribunal to summon and enforce the attendance of witnesses to give oral or written evidence and to produce any documents considered necessary. Subsection 50(3)(c) allows the Tribunal to receive and accept evidence whether or not it would be admissible in a court of law. These provisions do not provide the Tribunal with the authority to compel people who are not witnesses or parties to the proceedings to produce documents. Mr. Lemire has not been listed as a witness in this case. [5] The Complainant relies upon Metcalfe v. International Union of Operating Engineers, Local 882 and others (No. 7) 2005 BCHRT 165 as authority for the proposition that this Tribunal has the power to order third party production of documents. I disagree. Metcalfe (No. 7) is a case from the British Columbia Human Rights Tribunal. That Tribunal is subject to very different legislation. The British Columbia Human Rights Code was amended recently to incorporate a provision of the Administrative Tribunal Act, S.B.C. 2004, c. 45 that explicitly gives the British Columbia Human Rights Tribunal the power to order production of documents from third parties. The Tribunal in Metcalfe (No. 7) noted that prior to that amendment it did not have the power to order third party production and for that reason it had declined to do so. [6] In my view, the Canadian Human Rights Tribunal does not have the power to order the production of documents from third parties who are not witnesses. For that reason, I decline to order the production of the documents requested by the Complainant in his motion. Signed by Karen A. Jensen OTTAWA, Ontario April 5, 2006 PARTIES OF RECORD TRIBUNAL FILE: T1072/5305 STYLE OF CAUSE: Richard Warman v. Craig Harrison RULING OF THE TRIBUNAL DATED: April 5, 2006 APPEARANCES: Richard Warman For himself Giacomo Vigna/ Ikram Warsame No representations made for the Canadian Human Rights Commission Craig Harrison No representations made

2006 CHRT 2

CHRT

Sugimoto v. Royal Bank of Canada

en

2006-01-18

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6485/index.do

2023-12-01

Sugimoto v. Royal Bank of Canada Collection Canadian Human Rights Tribunal Date 2006-01-18 Neutral citation 2006 CHRT 2 File number(s) T1015/13504 Decision-maker(s) Sinclair, Grant, Q.C. Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE YVONNE SUGIMOTO Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - ROYAL BANK OF CANADA Respondent RULING 2006 CHRT 2 2006/01/18 MEMBER: J. Grant Sinclair [1] The Respondent, Royal Bank of Canada (RBC) filed a motion with the Tribunal requesting the Tribunal strike the Complainant's new allegation of discrimination relating to the 1996 Gender Buy-Back. [2] The grounds for the motion are that the Complainant and the Commission have recently asserted a new ground of discrimination which was not part of the original complaint; that RBC did not have the opportunity to raise the objection that the new allegation is untimely; and, raising the new allegation of discrimination at this time breaches the rules of natural justice and is highly prejudicial to RBC. [3] The Canadian Human Rights Commission has filed a responding motion that the Tribunal decline jurisdiction to hear the Respondent's motion; or, in the alternative, declare that the Respondent's motion is premature and reserve the right of the Respondent to argue the motion at the end of the hearing on a full evidentiary record. [4] The complaint referenced by the motions is that of Yvonne Sugimoto, a retired employee of RBC. Her complaint is dated December 9, 2002. [5] In her complaint, the Complainant alleges that RBC has discriminated against her as well as 700 other current and former female employees, by treating them in an adverse, differential manner on the ground of sex, contrary to ss. 7, 10, and 21 of the Canadian Human Rights Act. The issue is their pension entitlement. [6] Her complaint sets out in very long and complex detail, the evolution of RBC's Pension Plan during the period from 1970 to 2001, including changes to the enrollment criteria and other amendments to the Plan. [7] In terms of specific allegations of discrimination, the Complainant claims that the September 2001 Re-opener amendment to the Plan is discriminatory as RBC chose to give an advantage to male employees born between February 1950 and April 1953, by allowing them to retire with full pension benefits at age 56. Similarly situated RBC female employees could retire with full pension only at age 61 years, 10 months. [8] The genesis of the Respondent's motion is found in a May 25, 2005 letter from RBC to the Commission and the Complainant. In this letter, RBC sets out that, It has now come to our attention that the Commission and/or the Complainant may be taking the position that the 1996 Gender Buy-Back offered in 1996 to female employees of the Bank, including the Complainant, was discriminatory and contrary to the provisions of the Canadian Human Rights Act. RBC, in its letter, asked the Commission and the Complainant for clarification of their position. There is nothing in the letter as to when and how this came to RBC's attention. [9] The Commission's clarification, sent on May 30, 2005, was that the combination of the 2001 Re-opener and the 1996 Gender Buy-Back has an adverse impact on women. As such, it constitutes discrimination contrary to ss. 7 and 10 of the CHRA. [10] On May 31, 2005, the Complainant responded that it has always been her position that the 1996 Gender Buy-Back and the 2001 Re-opener are inextricably linked and cannot be viewed separately. It is the combination of these two events which has had an adverse impact on women, contrary to ss. 7 and 10 of the CHRA. The Complainant added that she and the other women should have been eligible for the pension option offered in 2001. [11] The Complainant was hired by the RBC on February 23, 1970. Her date of birth is October 4, 1951. When she joined the RBC, she was 18 years, 4 months old. In 1970, the eligibility age for membership in the Plan was 21 years for men and 24 years for women. [12] On May 1, 1974, RBC amended the Plan. The eligibility age to join the Plan was raised to 30 years of age for both men and women. The Plan was also amended to provide a non-contributory option. The non-contributory option allowed employees who had membership in the Plan, but were not yet 30 years of age, to continue as contributory members or suspend their membership until they attained 30. The Complainant was not offered this option of suspending membership in the Plan. She was not a member as at May 1, 1974. She was not 24 years old. [13] On September 1, 1980, the Plan was again amended and the eligibility age was changed to the earlier of 25 years of age or 5 years of continuous employment with RBC. At that time, the Complainant had been with RBC for over 10 years and was 28 years, 9 months old. She joined the Plan effective March 1, 1980. [14] In 1996, RBC, in order to deal with the past inequity in pension benefits, offered women who had continuously worked for the Bank since May 1, 1974, and, who were age 21 to 24 on May 1, 1974, a one-time option to purchase up to three years of contributory Plan membership. This is the 1996 Gender Buy-Back. [15] The Complainant took up this option and on January 29, 1996 she purchased 19 months of pension plan entitlement at a cost to her of $4,834. The Complainant was given a deemed date joined pension plan of August 1, 1978. [16] On July 12, 1996, the Complainant wrote to RBC commending it for its attempt to eliminate the Plan gender gap. However she pointed out in her letter, that the 1996 Gender Buy-Back did not eliminate the Plan gender gap for the period May 1, 1974 to March 1, 1980. The 1996 Gender Buy-Back reduced the gender gap by 19 months, but there still existed a 72 month gap between men and women, similarly situated in terms of age and employment with the RBC. [17] The Complainant concluded her letter by asking what efforts RBC was making to close this remaining pension gap. [18] RBC responded to the Complainant's concerns on September 17, 1996. In its letter, RBC pointed out that it had considered, when developing the 1996 Gender Buy-Back, allowing female employees to buy back service after May 1, 1974 up to age 30. However, RBC concluded that to do so would be unfair to other employees who were members of the plan as of May 1, 1974 and who had opted out until age 30. [19] The Complainant took no further action at that time with respect to her concerns. [20] In the 1990's, RBC came to the conclusion that the May 1, 1974 amendment to the Plan could be read as having a third option. The third option would have allowed a RBC employee, male or female, under 30 years of age on May 1, 1974, who was a member of the Plan, to remain in the Plan as a non-contributory member until attaining age 30. [21] As a result, on September 26, 2001, RBC offered all employees who had continuous employment from May 1, 1974, and who had elected to suspend their plan membership until age 30, the option to receive non-contributory service equal to the period from the suspension date to the date that they turned 30 years of age, (up to a maximum of 70 months). [22] It is the 2001 Re-opener that the Complainant, in her complaint, alleges is discriminatory. She alleges it gives a significant pension benefit to RBC male employees born between February 1950 and April 1953 with continuous service, which benefit is not accorded to RBC female employees born between those dates and having the same period of continuous service. DECISION [23] In my opinion, the Respondent's motion is premature. It should be dealt with in the context of a complete evidentiary record after a full hearing on the merits of the complaint. I say this for a number of reasons. [24] First, there is nothing in the complaint that alleges that the 1996 Gender Buy-Back was discriminatory in itself. Nor do the clarifications of the Commission and the Complainant allege that the 1996 Gender Buy-Back in itself is discriminatory. [25] For the Commission, it is the combination of the 1996 Gender Buy-Back and the 2001 Re-opener that is discriminatory. For the Complainant, the two amendments are inextricably linked and it is a combination of the two that is allegedly discriminatory. In my view, the positions of the Commission and the Complainant on this question require additional clarification. [26] Second, and equally to the point, is the Complainant's assertion that it has always been her position that the 1996 and 2001 amendments are inextricably linked. The inference being that no new discriminatory allegation is being raised. Whether this is the case factually and whether the Respondent was aware of this, was not adequately dealt with by the parties at the hearing of the Respondent's motion and needs to be fleshed out. [27] Thirdly, the Tribunal's normal case management process has not been completed. This process requires disclosure from the parties. Disclosure includes relevant document disclosure, witness disclosure and a statement of particulars. [28] The statement of particulars is akin to a statement of claim and a statement of defense in a civil proceeding. The statement of particulars of both the Commission and the Complainant would detail the facts relied upon by these two parties, the issues raised and the remedy they are seeking. The Respondent's statement of particulars would be its response, as is the case with any defense. All disclosure was suspended pending this motion. [29] The Respondent is asking the Tribunal to strike the new allegation of discrimination before any pleadings have been filed; the allegation has only been raised in correspondence between counsel for the parties. [30] Moreover, depending on the remedy that the Commission and the Complainant are seeking, it may not be necessary to decide whether the 1996 Gender Buy-Back is discriminatory. [31] It is also possible however that I am being asked to make a decision on a preliminary basis which may well decide the complaint on the merits without a full hearing. It is inadvisable for the Tribunal to make such a decision in the above-described circumstances. [32] Accordingly, I reserve my decision on both the Respondent's motion and the Commission's motion until a full evidentiary record is established at a hearing. [33] This is without prejudice to the rights of the Respondent and the Commission to argue their respective motions, on the full record, as part of their closing submissions. Signed by J. Grant Sinclair OTTAWA, Ontario January 18, 2006 PARTIES OF RECORD TRIBUNAL FILE: T1015/13504 STYLE OF CAUSE: Yvonne Sugimoto v. Royal Bank of Canada DATE AND PLACE OF HEARING ON THE PRELIMINARY MOTION: November 11, 2005 Toronto, Ontario RULING OF THE TRIBUNAL DATED: January 18, 2006 APPEARANCES: M. Norman Grosman Natalie MacDonald For the Complainant Philippe Dufresne For the Canadian Human Rights Commission Stephen J. Shamie Elizabeth Brown For the Respondent

2006 CHRT 20

CHRT

Warman v. Winnicki

en

2006-04-13

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6826/index.do

2023-12-01

Warman v. Winnicki Collection Canadian Human Rights Tribunal Date 2006-04-13 Neutral citation 2006 CHRT 20 File number(s) T1021/0205 Decision-maker(s) Jensen, Karen A. Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LAPERSONNE RICHARD WARMAN Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - TOMASZ WINNICKI Respondent REASONS FOR DECISION 2006 CHRT 20 2006/04/13 MEMBER: Karen A. Jensen I. THE COMPLAINTS II. WHAT CIRCUMSTANCES GAVE RISE TO THESE COMPLAINTS? III. WHAT QUESTIONS NEED TO BE ADDRESSED IN THIS CASE? A. Question 1 - Is the Tribunal Permitted to Rule on Material That Was Not Included In the Original Complaint? B. Question 2 - What are the sources of the material that allegedly violates s. 13(1)? (i) The Northern Alliance Guestbook (ii) The Winnicki Website (iii) The Vanguard News Network C. Question 3 - Did the Respondent repeatedly communicate the impugned messages from the above noted sources by means of the Internet? (i) Who was the communicator of the impugned material? (ii) Did the Respondent repeatedly communicate the allegedly discriminatory material? D. Question 4 - Is the material likely to expose persons to hatred or contempt by reason of the fact that they are identifiable on the basis of a prohibited ground of discrimination? (i) The Law (ii) The Impugned Messages E. Question 5 - Did the Respondent Retaliate or Threaten Retaliation Against the Complainant? IV. REMEDIES A. Retaliation - Section 14.1 (i) Cease and Desist Order (ii) Compensation for Pain and Suffering (iii) Special Compensation (iv) Expenses Related to the Hearing (v) Interest B. Hate Messages - Section 13 (i) Cease and Desist Order (ii) Section 54(1)(b) - Special Compensation (iii) Penalty I. THE COMPLAINTS [1] This is a decision regarding two complaints filed by Mr. Richard Warman against Mr. Tomasz Winnicki. The first complaint involves the alleged communication of hate messages contrary to s. 13(1) of the Canadian Human Rights Act (the Act). The second complaint involves allegations of retaliation or threatened retaliation contrary to s. 14.1 of the Act. [2] I heard both complaints together in July and December, 2005. The Canadian Human Rights Commission (the Commission) participated fully in the hearing. The Complainant, who is a lawyer, represented himself. The Respondent represented himself for the first day of the hearing and thereafter was represented by counsel. The Respondent chose not to testify. II. WHAT CIRCUMSTANCES GAVE RISE TO THESE COMPLAINTS? [3] The Complainant testified that, about 15 years ago, he became interested in the issue of hate speech. He began to monitor the activities of organized groups and individuals in Canada that he suspected were spreading hate messages. [4] During the course of his monitoring activities, the Complainant became aware of material on the Internet that was apparently posted by the Respondent, Mr. Tomasz Winnicki. He testified that he thought the material violated s. 13(1), the hate message provision of the Canadian Human Rights Act, in that it was likely to expose people of the Jewish faith to hatred or contempt. As a result, on September 7, 2003, the Complainant filed a human rights complaint with the Canadian Human Rights Commission. He appended material that he downloaded from the Internet, which was allegedly communicated by the Respondent, to the s. 13(1) complaint. [5] The Complainant testified that he subsequently became aware of other messages on the Internet which he believed were posted by the Respondent in retaliation against him for filing a human rights complaint. The Complainant then filed a retaliation complaint with the Canadian Human Rights Commission dated June 1, 2004 alleging that the Respondent had violated s. 14.1 of the Act. The Complainant appended the allegedly retaliatory messages to the s. 14.1 complaint. [6] The Canadian Human Rights Commission subsequently decided to refer both complaints to the Tribunal for further inquiry. After the Commission had referred the complaints to the Tribunal, the Complainant testified that he found additional material on the Internet that was allegedly posted by the Respondent. It was believed that this material was likely to expose people to hatred or contempt on the basis of race, national or ethnic origin and colour. As a result, on May 20, 2005, the Canadian Human Rights Commission requested leave from the Tribunal to amend the first complaint to include the additional grounds of race, national or ethnic origin and colour. The Respondent was served with the motion and the additional material that was found on the Internet. [7] On July 11, 2005, I granted the Commission's request to amend the s.13(1) complaint on the basis that the substance of the original complaint was not altered by the addition of the new grounds; a new discriminatory practice was not being alleged. I also found that the Respondent had been given sufficient notice to enable him to properly defend himself against the amended complaint. Accordingly, the s. 13(1) complaint was amended to include the additional grounds and the new material was appended to the revised complaint. [8] After the amendment was made but prior to the hearing, the Complainant testified that he found more material on the Internet that was allegedly posted by the Respondent. This material was disclosed to the Respondent before the hearing and it was alleged that the material was further evidence of the Respondent's ongoing violation of sections 13(1) and 14.1. (For ease of reference all of the material that was found on the Internet after the complaint was referred to the Tribunal, including the material that was appended to the amended complaint, will be referred to as the post-referral evidence) [9] On July 27, 2005, the Commission filed a motion with the Federal Court requesting an interlocutory injunction against the Respondent pending a final decision by this Tribunal. The Federal Court granted the Commission's motion on October 4, 2005 and, as a result, from that date until the date of this decision, the Respondent was prevented from communicating, by means of the Internet, messages of the kind found in the material that was filed with the Federal Court (Canadian Human Rights Commission v. Winnicki 2005 FC 1493). [10] Before this Tribunal, the Complainant and the Commission requested an order requiring the Respondent to cease and desist from communicating messages of the kind that were submitted with the complaints. They also sought compensation for the pain and suffering that the Complainant allegedly experienced as a result of the retaliation, in addition to special compensation and reimbursement for costs incurred by the Complainant to attend the hearing. [11] The Respondent, through his counsel, admitted to having communicated the messages that were the subject of the original complaints filed on September 7, 2003 and June 1, 2004. The Respondent objected, however, to the consideration of any of the post-referral material by the Tribunal on the basis that it was not part of the original complaint. The Respondent denied that any of the material exposed members of an identifiable group to hatred or contempt. He also denied having retaliated against the Complainant for filing a human rights complaint against him. Finally, the Respondent disputed the appropriateness of the remedies requested by the Complainant and the Commission. III. WHAT QUESTIONS NEED TO BE ADDRESSED IN THIS CASE? [12] I must address the following questions in this case: Is the Tribunal permitted to rule on material that was not included in the original complaint? What are the sources of the material that allegedly violate s. 13(1)? Did the Respondent communicate the impugned messages repeatedly, by means of the Internet? Is the material likely to expose persons to hatred or contempt by reason of the fact that they are identifiable on the basis of a prohibited ground of discrimination? Did the Respondent retaliate against the Complainant after he filed his complaint with the Canadian Human Rights Commission? [13] For the reasons that follow, I have concluded that the Respondent willfully and repeatedly communicated messages via the Internet that are likely to expose persons of the Jewish faith, black race and other non-Caucasian races, and persons of African origin to hatred or contempt. I have also concluded that the Respondent willfully retaliated against the Complainant for filing a human rights complaint. As a result, I find that both complaints against the Respondent are substantiated. A. Question 1 - Is the Tribunal Permitted to Rule on Material That Was Not Included In the Original Complaint? [14] Although the Respondent did not object when the Commission introduced the post-referral evidence during the hearing, at the close of the hearing the Respondent argued that the Tribunal could not consider this evidence since it essentially constituted the basis for new complaints which should have first been submitted to the Canadian Human Rights Commission. [15] I disagree with this argument for a number of reasons. Firstly, the Respondent is essentially attempting to re-litigate the motion to amend the original s. 13(1) complaint. The motion to amend the s. 13(1) complaint was granted on the basis of the post-referral evidence that was filed in support of that motion. In deciding that an amendment to the original complaint was appropriate, the issue of whether that evidence constituted the basis for a new complaint was conclusively determined. As a result of that Ruling, excerpts of the post-referral evidence were incorporated into the particulars of the amended complaint. Therefore, it cannot now be argued that the evidence that was the basis for the amendment is, in fact, the basis of a new complaint. This would effectively constitute an attempt to re-argue the motion to amend the complaint. To do so would be an abuse of process and will not be permitted (Cremasco v. Canada Post Corporation 2002/09/30 - Ruling No. 1, at para. 77, aff'd 2004 FCA 363). [16] Secondly, with regard to the second batch of post-referral evidence that was disclosed after the complaint was amended, I am also of the view that it may properly be considered by the Tribunal. The evidence does not disclose the basis for a new complaint or a new series of complaints, but rather goes to the issue of whether the Respondent was engaging in an ongoing violation of sections 14.1 and 13(1) of the Act. The amended s. 13(1) complaint specifically contemplates the possibility that additional evidence of the violation of s. 13(1) would occur by including the words and ongoing in the date of the alleged discriminatory conduct. [17] In LeBlanc v. Canada Post Corporation (1992), 18 C.H.R.R. D/57, the Tribunal discussed a similar objection to the one raised by the Respondent in the present case. In that case, the Canadian Human Rights Commission indicated that it intended to lead evidence of other incidents of alleged discrimination which were not set out in the complaint form. Counsel for the Respondent objected. The Tribunal ruled that the evidence was admissible because the complaint form referred to incidents of discrimination that were ongoing and the evidence appeared to be the continuation of the complaint. Moreover, the Tribunal ruled that the Commission and the complainant are not necessarily restricted to the four corners of the complaint form. The essential question is whether it would be fair to admit the evidence. If there is no evidence of surprise and the Respondent is aware that the complaint relates to ongoing events, then it is difficult for the Respondent to argue prejudice. [18] In the present case, there is no evidence that the Respondent was caught be surprise by the introduction of the evidence. It was disclosed to him prior to the hearing and, as stated above, the amended s. 13(1) complaint form indicated that the complaint related to ongoing events. Finally, the Commission's application to the Federal Court for an interlocutory injunction would have been a clear signal to the Respondent that the Commission was taking issue with the Respondent's continued communication of material that was allegedly in violation of s. 13(1). [19] It was not indicated on the s. 14.1 complaint form that the complaint related to ongoing events. However, I find that in the context of the ongoing disclosure that was taking place prior to the hearing, and the motions that were being made before the Tribunal and the Federal Court, this is not significant. It would hardly have come as a surprise to the Respondent that any messages that were found on the Internet that could be construed as retaliatory might well be introduced as evidence at the hearing. [20] The Respondent argued that he was deprived of an opportunity to engage in conciliation and to respond to the post-referral messages before the Canadian Human Rights Commission. This argument rings hollow. The post-referral messages are of the same nature as the material that was submitted to the Commission as part of the original complaints. The Respondent would have had the opportunity to engage in conciliation and to respond to the messages that were part of the original complaint. It is unlikely that the additional material would have made any difference to the conciliation and settlement efforts. [21] The present case is very different from Canada (Attorney General) v. Canada (Canadian Human Rights Commission) (1991), F.T.R. 47 (Pitawanakwat) upon which the Respondent relies in support of his argument that the Tribunal does not have the jurisdiction to consider the post-referral evidence. The Pitawanakwat case dealt with the Commission's jurisdiction to refer an amended complaint to the Tribunal that included a new allegation of discrimination based on a different ground some four years after the original complaint had been signed. The case did not deal with the Tribunal's jurisdiction to accept post-referral evidence. [22] Therefore, given that the evidence relates to the issue of the ongoing nature of the violations and the fact that the Respondent had adequate notice and an opportunity to address the post-referral evidence, I find that the Tribunal is entitled to consider the post-referral evidence. B. Question 2 - What are the sources of the material that allegedly violates s. 13(1)? [23] The Complainant testified that there are essentially three sources of the impugned messages: The Northern Alliance Guestbook; the Respondent's own website; and the Vanguard News Network. The majority of the impugned messages were found in the VNN Forum. However, some were from the Northern Alliance Guestbook and some from the Respondent's own website. (i) The Northern Alliance Guestbook [24] The Complainant testified that he viewed material on a website on the Internet called Northern Alliance. He downloaded the material that he believed was communicated by the Respondent and submitted it as an attachment to his original s. 13(1) complaint dated September 3, 2003. The Complainant testified that the Northern Alliance was a group based in London, Ontario that offered a Guestbook on the Internet where people could make on-line comments about various topics. The Guestbook consisted of a series of comments one after the other without any real structure to it. The banner across the top of the Guestbook reads: Northern Alliance The new voice of the Canadian majority [25] There were two entries to the Northern Alliance Guestbook made by the Respondent that were submitted as part of the s. 13 complaint. The Complainant testified that, to the best of his knowledge, by the time of the hearing into this matter, the Northern Alliance Guestbook had been deleted. (ii) The Winnicki Website [26] The Complainant testified that, while visiting the Northern Alliance Guestbook, he clicked on the link that was provided with the Respondent's comments and was taken to the following website address: WW3.sympatico.ca/tom.winnicki. On that website he found several graphic images together with statements such as WHITE REVOLUTION .... ITZ COMING .... AND ITZ GIGANTIC... Links to websites were also provided that claimed to provide unbiased history. The Complainant testified that he believed the material on the website found at WW3.sympatico.ca/tom.winnicki was communicated by the Respondent. He downloaded it on September 3, 2003 and appended it to his human rights complaint alleging that the communications violated s. 13(1) of the Act. [27] The Complainant testified that, at the time that he filed his s. 13(1) complaint with the Canadian Human Rights Commission in September 2003, he raised concerns about the Repondent's website with Bell Sympatico. He was led to believe that Bell Sympatico ultimately shut down the WW3.sympatico.ca/tom.winnicki website. (iii) The Vanguard News Network [28] The Complainant testified that he conducted an Internet search on the name Tom Winnicki. One of the results of that search led him to a website called the Vanguard News Network. The Complainant testified that to the best of his knowledge, the Vanguard News Network (VNN) was a website that was registered in the United States and was controlled by persons who lived in the United States. Among other things, the website provided news briefs from a neo-Nazi perspective. According to the Complainant, the website also provided a forum where people could discuss a number of issues. [29] The Complainant testified that, once he had accessed the main page of the VNN, he was then able to choose from a number of options. One of these options was the VNN Forum. When he clicked on the VNN Forum icon, he was linked to another page on the website that presented him with another set of options, known as threads. According to the Complainant, threads are topics of discussion that are initiated by members of the VNN. Members of the Forum may post (or communicate) publicly accessible messages that follow one from the other within a given thread or topic of conversation. The term This Just In introduces a new thread, or topic of discussion. There are other threads that are listed within the categories in the Forum. [30] According to the Complainant, becoming a member of the Forum was a relatively straightforward process that involved providing a valid e-mail address and registration information. C. Question 3 - Did the Respondent repeatedly communicate the impugned messages from the above noted sources by means of the Internet? (i) Who was the communicator of the impugned material? [31] Through his counsel, the Respondent admitted that he communicated the messages which were included in the original complaints that were investigated by the Canadian Human Rights Commission and subsequently referred to the Tribunal. These messages included those found by the Complainant on the Northern Alliance website and on the Winnicki website, as well as some from the VNN Forum. [32] It was unclear, however, whether the Respondent's admission that he communicated the impugned messages extended to the post-referral material. Therefore, I have reviewed this material and find, for the following reasons, that the Respondent was, in fact, the person who communicated the post-referral material that was filed as evidence during the hearing in this matter. [33] In the messages that formed part of the original complaints, the Respondent alternated between the use of the pseudonym Thexder 3D and the name Tom Winnicki. When the pseudonym was used, it was accompanied by a robot symbol. [34] The communicator of the post-referral messages refers to himself as Thexder 3D and Tomasz Winnicki. In one such message Tomasz Winnicki corrected a misspelling of his pseudonym stating: It's Thexder not Thexter but that's of little importance. Use my real name Tomasz Winnicki from now on. Tomasz in Polish is the formal form for Tom, so you can also address me as that. [35] Thus, the evidence demonstrates that the Respondent, who went by the names Tom Winnicki and Tomasz Winnicki, and used the pseudonym Thexder 3D together with a robot symbol, was the person who communicated the post-referral material. (ii) Did the Respondent repeatedly communicate the allegedly discriminatory material? [36] In Schnell v. Machiavelli and Associates Emprize Inc., (2002), 43 C.H.R.R. D/453, the Tribunal held that the use of the word repeatedly in s. 13(1) suggests that s. 13(1) is aimed not at private communications with friends, but rather at a series of messages that form a larger-scale, public scheme for the dissemination of certain ideas or opinions, designed to gain converts from the public (Schnell, supra, at para. 129). [37] The Mission Statement of the Vanguard News Network, which was entered into evidence during the hearing, states that the VNN is a group of disgusted and disaffected writers that have come together in order to reclaim the American mind from the Jews. Thus, it is apparent that the Respondent's communications in that Forum were part of a larger-scale scheme for the dissemination of opinions, designed to gain converts from the public. [38] There was a difference of opinion between the Complainant and the witness for the Respondent, Mr. Paul Fromm, as to whether the messages on the VNN Forum were accessible to the public. The Complainant testified that all of the messages could be viewed by the public without being a member of the VNN Forum. Mr. Fromm, on the other hand, testified that some of the messages were not accessible to the public; one had to be a member to view some of the messages. [39] Mr. Fromm's testimony in that regard was shaken on cross-examination. During the hearing, and using the Tribunal Registry Officer's computer, the Complainant led Mr. Fromm through the steps involved in accessing a number of postings within a thread from the VNN forum. Mr. Fromm admitted that during this demonstration, he was able to directly access the website with the URL of www.vnnforum.com and several pages within the Forum were viewed without the need to establish membership in the Forum. On the basis of this evidence, I find the Complainant's testimony regarding the public accessibility of the Respondent's postings to be more credible than that of Mr. Fromm. I also accept the Complainant's testimony that the messages on the VNN Forum remained accessible to the public at least until the first day of the hearing, which was August 8, 2005. [40] Similarly, the evidence provided above regarding the Northern Alliance Guestbook and the Winnicki website indicates that the Respondent's communications on these websites did not constitute private communications among friends. They were posted for broader consumption and were accessible to the public (until they were shut down) through an Internet search engine or directly by typing the Internet address into a computer. [41] Therefore, I find that the Respondent repeatedly communicated all of the impugned messages over the Internet. D. Question 4 - Is the material likely to expose persons to hatred or contempt by reason of the fact that they are identifiable on the basis of a prohibited ground of discrimination? (i) The Law [42] In answering this question the Tribunal is guided by the definitions of the words hatred, contempt, expose and likely that have been provided in decisions of the Canadian Human Rights Tribunal, the Federal Court of Canada and the Supreme Court of Canada. [43] In Canada (Human Rights Commission) v. Taylor [1990] 3 S.C.R. 892, the Supreme Court of Canada adopted the Tribunal's definition of hatred and contempt (Taylor, supra, at para. 60; Nealy v. Johnston (1989), 10 C.H.R.R. D/6450 at p. D/6469; Taylor and the Western Guard Party v. Canadian Human Rights Commission and Attorney General of Canada (1979), T.D. 1/79 (hereinafter referred to as the Tribunal's decision in Taylor). Hatred is defined as active dislike, detestation, enmity, ill-will and malevolence. It means, in effect, that one finds no redeeming qualities in the object of one's detestation. It is a term, however, which does not necessarily involve the mental process of looking down on another or others. It is quite possible to hate someone who one feels is superior to one in intelligence, wealth, or power. [44] Contempt, in contrast, does suggest a mental process of looking down upon or treating as inferior the object of one's feelings. This reflects the dictionary definition of despise, dishonour or disgrace (Taylor, supra, at para. 60) [45] Expose means: to leave a person unprotected; to leave without shelter or defence; to lay open to danger, ridicule or censure. (the Tribunal's decision in Taylor, supra, at p. 29). In Taylor, the Tribunal held that expose is a more passive word than incite. This suggests that active effort or intent on the part of the communicator is not envisaged. Similarly, the use of the word expose in s. 13(1) suggests that a violent reaction on the part of the recipient of the message is not envisaged. In other words, the Tribunal stated, if one is creating the right conditions for hatred to flourish, leaving the identifiable group open or vulnerable to ill-feelings or hostility, if one is putting them at risk of being hated, in a situation where hatred or contempt are inevitable, one then falls within the compass of s. 13(1) of the Human Rights Act (p.29). [46] The Tribunal in Nealy v. Johnston stated that the use of the word likely in s. 13(1) means that it is not necessary that evidence be adduced to prove that any particular individual or group took the messages seriously and directed hatred or contempt toward others. Nor is it necessary to show that, in fact, anyone was so victimized. Unlike the other sections in the Act dealing with discrimination, s. 13(1) provides for liability where there is no proven or provable discriminatory impact (Nealy v. Johnston, supra, at para. 45697). The Tribunal alluded to the difficulty involved in determining how many people had received the message and to gauging the impact of the message on these people. This, in the Tribunal's view, justified the extension of liability under s. 13(1) to cases where there is no proven or provable actual discriminatory effect. [47] The Respondent in this case took issue with the interpretation of s. 13(1) provided by the Tribunal in Nealy v. Johnston, arguing that the majority of the Supreme Court in Taylor did not endorse this interpretation. The Respondent based his argument on statements made by Dickson C.J., on behalf of the majority of the Supreme Court in that case. At paragraph 60, Dickson C.J. stated: In my view, there is no conflict between providing a meaningful interpretation of s. 13(1) and protecting the s. 2(b) freedom of expression so long as the interpretation of the words hatred and contempt is fully informed by an awareness that Parliament's objective is to protect the equality and dignity of all individuals by reducing the incidence of harm-causing expression. (emphasis added) [48] The Respondent has interpreted this statement, and others made by the majority in Taylor regarding the importance of focusing on the effects of discrimination, to mean that s. 13(1) requires proof that the impugned material caused harm. [49] I disagree with the Respondent's interpretation of the majority's decision in Taylor. Moreover, it does not accord with the wording of s. 13(1) of the Act. Section 13(1) makes it is a discriminatory practice to communicate messages that are likely to expose a person or persons to hatred or contempt. The provision does not state that it is a discriminatory practice to communicate messages that cause others to feel hatred or contempt toward members of the targeted group. [50] As the majority in Taylor stated, hate messages, by their very nature, do cause harm in two significant ways. First, they undermine the dignity and self-worth of target group members and, secondly, they erode the tolerance and open-mindedness that must flourish in a multi-cultural society that is committed to the idea of equality. The statement was based on numerous studies and Reports that established the harm that is caused by hate messages. (Taylor, supra, at para. 41) There is no suggestion that the majority's conclusion with regard to the harm that is caused by hate messages was limited to the particular facts of the case. [51] Therefore, messages that fall within the definition of hate messages in s. 13(1) do cause harm. Proof of harm is not required. The key is to ensure that only those messages that are likely to expose members of the targeted group to unusually strong and deep-felt emotions of detestation, calumny and vilification are caught by s. 13(1). The Likelihood of Exposure to Harm [52] How is the likelihood of exposure to hatred or contempt to be determined? Is it sufficient for the Tribunal to have regard to the messages alone and then draw an inference, based on the content, tone and presentation of the messages as to whether they are likely to expose members of the targeted group(s) to hatred or contempt? Or must there be other evidence to assist the Tribunal in determining whether the messages are likely to expose members of the targeted groups to hatred or contempt? [53] In Citron v. Zundel, (No. 4) (2002), 41 C.H.R.R. D/274, at para. 141, the Tribunal stated that, although the expert evidence in that case was helpful, it was the language used in the messages themselves that persuaded the Tribunal that the material offended s. 13(1) of the Act. Similarly, in Warman v. Kyburz, 2003 CHRT 18, the Tribunal noted the expert's evidence that suggested the messages were likely to expose people of the Jewish faith to hatred and contempt, but the Tribunal found that it was evident from the messages themselves that they exposed Jewish people to hatred (Kyburz, supra, at para. 43). [54] The Respondent has argued that the likelihood of exposure to hatred and contempt should not be assessed on the basis of the Tribunal's own subjective impressions of the material, nor should it be based on the Tribunal's assessment of the potential impact of the messages on the most malevolent or unthinking person as suggested in Nealy v. Johnston. Rather, the Respondent argued that the assessment should be made on the basis of the likely reaction of the Canadian public. [55] The likely reaction of the Canadian public to the impugned messages is determined by comparing the impugned messages to messages of a similar nature that are available on the Internet where the reaction of the Canadian public is known. The Respondent called the latter messages the tolerated messages. I disagree with the term tolerated for the reasons that follow, but for ease of reference, I will continue to use the term the Respondent has given them. The Tolerated Messages [56] During the hearing, counsel for the Respondent led evidence that consisted of excerpts from the Bible, the Koran, The Merchant of Venice by William Shakespeare, The Adventures of Huckleberry Finn by Mark Twain, Mein Kampf by Adolph Hitler, lyrics from contemporary Rap music available on the Internet and other written material that is available online. This material was provided as examples of material that is likely to expose members of a group identifiable on the basis of a prohibited ground of discrimination to hatred or contempt. For example, in The Merchant of Venice, Shakespeare describes Shylock, a Jewish money lender, as a dog Jew. In the book of Leviticus in the Bible, homosexuality is described as an abomination and homosexuals as ignorant transgressors that should be put to death. The Rap music that was introduced into evidence describes the white man as the devil and advocates the killing of White people because they are not worthy to walk the earth with the original black man. [57] Counsel for the Respondent asserted that these messages were of a comparable nature to the impugned messages. She then stated that uncontradicted evidence showed that the Canadian public has not reacted with hatred or contempt against the targeted groups as a result of these messages which, in the opinion of counsel for the Respondent, are undoubtedly more influential and widely disseminated than the impugned messages. Therefore, counsel for the Respondent asserted, the Canadian public is unlikely to react with hatred and contempt to the impugned messages. [58] The uncontradicted evidence would appear to be statements by Respondent counsel, in closing argument, such as the following: Regarding sexual orientation, the Catholic Church's vocal opposition of homosexuality is current, well-known, extensive, long term and government subsidized through the church's favorable tax status. Yet, it is also well-known that last year, despite its minority nature, federal Parliament successfully passed law legalizing same sex marriages. Canadian public has shown itself unlikely to be inspired by this message to hold hatred and contempt against homosexuals, its repeated communication notwithstanding. [59] Counsel for the Respondent further asserted that the fact that Canada's Governor General, Her Excellency Michaëlle Jean, is a Black woman and that multi-faith weddings occur is further uncontradicted proof that the tolerated messages have not resulted in hatred or contempt being directed at the targeted groups. [60] There are a number of flaws in this approach. Firstly, I find no basis for the Respondent's assertion that uncontradicted evidence demonstrates that the Canadian public has not reacted with hatred or contempt as a result of the tolerated messages. The fact that the Governor General of Canada is a Black woman, for example, in no way proves that the tolerated messages that disparage Black people have not caused some people to react with hatred and contempt towards Black people. The fact that there are inter-faith marriages does not prove that messages advocating the annihilation of Jewish people have not caused some people to react with hatred and contempt toward people of the Jewish faith. [61] Secondly, and perhaps more importantly, whether or not Canadians have reacted with hatred or contempt to any of the so-called tolerated messages has no bearing whatsoever on my evaluation of the Respondent's messages. As I indicated above, it is not necessary for the Complainant to prove that the Respondent's messages, much less other messages found on the Internet, have caused others to react with hatred or contempt toward the targeted groups. The question is whether the Respondent's messages are likely to expose members of the targeted groups to hatred or contempt. [62] If the Respondent's argument is that there is no evidence that the tolerated messages have exposed members of the targeted group to hatred or contempt, again I disagree. The fact that same-sex marriage has been legalized in some jurisdictions in no way demonstrates that the tolerated messages advocating violence against homosexuals are unlikely to expose homosexuals to hatred and contempt. In that regard, I note that the Biblical passage which states that if a man lies with a man he must be put to death, when combined with an anti-gay symbol has been found by the Saskatchewan Board of Inquiry to expose homosexuals to hatred (Hellquist v. Owens (2001), 40 C.H.R.R. D/197, aff'd, 2002 SKQB 506, on appeal to the Sask. C.A.). Therefore, it cannot be argued that there is no evidence that the tolerated messages have exposed members of the targeted group to hatred or contempt. [63] As a culture, we may be exposed, on a frequent basis, to messages that convey hate. However, the likelihood that a message will expose people to hatred and contempt does not diminish because there are numerous others like it circulating in society. The goal of promoting equality of opportunity unhindered by discriminatory practices is not advanced by importing a standard that effectively asks: in comparison to the many messages in society that are likely to expose people to hatred or contempt, are these messages really so bad? [64] For these reasons, in determining whether the impugned messages are likely to expose persons to hatred or contempt, I cannot give any weight to the widespread existence of other messages that are alleged to have the same effect. Rather, I must focus on whether it is reasonable to conclude, on the basis of the language, tone, presentation and content of the impugned messages, that they might well have exposed members of the targeted groups to hatred and contempt. [65] Moreover, as the majority of the Supreme Court in Taylor stated, as long as the Tribunal continues to sanction only those communications that are likely to expose members of the targeted groups to unusually strong and deep-felt emotions of hatred and contempt, there is little risk that the subjective opinion of the Tribunal will result in the prohibition of merely offensive communications. The Tribunal must also bear in mind that the goal of s. 13(1) is to prohibit hate messages that, by their very nature, create harm. The goal of s. 13(1) is not to rid the Internet of vulgar, distasteful and offensive material. (ii) The Impugned Messages The Northern Alliance Guestbook [66] In a message on the Northern Alliance Guestbook dated July 12, 2003, the Respondent expressed his disgust for Black people and people of the Jewish faith. He called Black people niggers and described them as intellectually inferior to white people. He stated that he dislikes Blacks in general. The reasons he provided are that Black people are violent and stupid. He stated that Jewish people are responsible for having infested us with the nigger and, therefore, Jewish people should be forced to live with Black people in Israel. He asserted that Jewish people control the media and that is why people like Einstein have received far more acclaim than non-Jewish inventors. The Respondent also expressed his admiration for the Japanese and their culture. He stated that the Japanese are very racially aware and have very strict immigration laws. He stated It will be interesting to see how they handle the Jewish problem. [67] In this message, the Respondent attempts to legitimize an attitude of contempt and hatred for people of the Black race by portraying them as intellectually inferior, violent and stupid - in short, devoid of any redeeming qualities. He weaves into this message a theory that blames Jewish people for bringing Black people into White civilization and for taking credit for new inventions. The message fosters the belief that both Black and Jewish people are ruining Canadian society. It is therefore, likely to expose members of these groups to hatred or contempt. The Winnicki Website [68] On the website found at WWW3.sympatico.ca/tom.winnicki, the Complainant found a graphic image or poster that included swastikas, a robot and several other images over which was superimposed the following words: WHITE REVOLUTION IS COMING ...... AND IT'S GIGANTIC. [69] Then, in smaller letters under the robot image, was the following: HOLOHOAX DEBUNKED. FOR UNBIASED HISTORY GO TO: WWW.ihr.org. FOR WHITE NEWS FORGET CNN? GO TO WWW.GOVNN.COM [70] Underneath the poster, in capital and bolded letters was the following message: WE'RE COMING FOR YOU, YOU JEW FUCKS, YOU AND YOUR SERVILE DOGS TOO. [71] This message contains a number of elements that make it likely to expose Jewish people to hatred or contempt. Firstly, it refers to the Holocaust as the Holohoax. This term inspires contempt and ill-will towards Jewish people by suggesting that the mass murder of millions of Jewish people during the Second World War did not happen and was merely a hoax. Secondly, there is a clear threat of harm and ill-will toward Jewish people conveyed in this message. Therefore, I find that the message is likely to expose people of the Jewish faith to hatred or contempt. The Vanguard News Network Black and Other Non-Caucasian People [72] The following are examples of some of the Respondent's postings regarding Black and other non-Caucasian people on the VNN Forum. [73] In an entry on the VNN Forum entitled Toronto's ghettos move to the `burbs, the Respondent comments on an article in the National Post early in 2004 about the increase in poverty in Toronto. He quotes parts of the article which indicate that the higher poverty neigbourhoods which were previously clustered in the downtown have now become prevalent in suburbs such as North York and Scarborough. The Respondent then states in parentheses: What those idiots are actually saying is that North York and Scarborough are infested with lazy, savage and totally worthless negroids and other muds of unidentified kind. It took my family less than a year to become productive members of the Canadian society. How long does it take for a 3rd world shit-skin to become a productive member of a white society? That's right, forever. On commie CBC we'll hear about all those Asian tiger entrepreneurs making it big in the promised land - Canada. Of course, commie CBC misses the forest for the few, very few trees. For every one of those shit-skin businessmen, whose businesses are infected with white tax dollars, there are thousands of worthless sub-human scum. [74] In another entry in the same thread entitled Toronto's ghettos move to the `burbs, the Respondent comments on a different article regarding affordable housing. He quotes the following from the article: How can this be happening in a city like this? sighed Connie Richards, as she waited for her clothes at the Wash & Fold laundry in Back Creek, a neighbourhood among those identified in the report. The Respondent posted the following reaction to the quote: [How? HOW?! Fuck you negroes? Sorry, I should not blame the negroes for their inherent nature. I meant to write Fuck you Jews - nation wreckers, you flooded them here. Hey Connie, fold your filthy negro laundry, pack up your illegitimate (10 or whatever you squeezed out) niglets and get the hell out of our white civilization. I'll even pay for a first-class ticket to Afreaka for you, now about it?] [75] There is more of the same kind of commentary that follows this statement. [76] In yet another entry on the VNN Forum entitled: Hey Polish girl ... why don't you get a Polish boyfriend on an article about the murder of a woman, the Respondent states: Polish women must be total fucking idiots. I've heard so many stories of those whores (not that they're the only ones) dating and screwing with nigs and other muds, it's truly sickening. This race-mixing slut got what she bargained for. [77] The Respondent initiated a thread entitled Another brazen daylight shooting in multi-culti Toronto. It contains a number of URL links to news stories. Following the links, the Respondent provides his commentary. He assumed that it was someone of the Black race that committed a shooting in Toronto. These were his words: I bet you $1000 it was a nigger or some other assorted type of shit colored man... errr I mean sub-human. Are niggers really such lousy shots? I mean, he was shooting at a car from close range but still managed to hit two passerbys. Stupid nigger-ape. How do you like multi-culturalism Toronto? Good? And Brad Love, a hard working Canadian who saw his city being turned into shit over a few decades is in jail right now for writing perfectly legal (non-threatening that is) anti non-white immigration letters to MPs. I want the Dominion back. [78] He then went on to state: Shitskin sexually assaults (a white I presume) woman. He gave a link to another story on a website called pulse 24 and then stated: Shitskins turn everything into shit, everything they touch or come into close vicinity with. He provided yet another URL link and concluded with the following message to Black people: Message to all you coloreds: Get out (if you're already here), stay out and never come back to my city. Don't even come near it, you civilization wrecking muds. Go to multi-culti Toronto. ... better yet, go back to Africa. [79] The Respondent also targeted people of East Indian descent stating: NIGGERS AND EAST INDIANS ARE SHIT!!!! GET OUT OF OUR CIVILIZATION YOU FUCKING MUDS!!!! [80] In the messages quoted above, the Respondent portrayed Black people and other non-White people, especially immigrants, as criminals with sub-average intelligence. He frequently referred to them in terms of human excrement and filth. Black people were described as being worse than violent, thieving, lying bastards. The Respondent called Black people niggers, nigger sub-humans, fucking subhuman, fucking mud, fucking cockroach, a.k.a. fucking coon, a.k.a. fucking nigger. These kinds of descriptions and epithets are de-humanizing, degrading and highly likely to expose Black people and other non-White or non-Caucasian people to hatred and contempt. [81] The clear message throughout all of the Respondent's communications regarding Black people, East Indian people and other non-Caucasian people is that they are such detestable, violent and stupid human beings that they must be removed from Canada or segregated from the pure White population. They have no redeeming qualities and are so dangerous and harmful that extreme hatred is justified. [82] I find that Respondent was not merely venting his emotions; he was also imploring visitors to the website to see things his way. He was seeking converts to his point of view. This is evidenced by the fact that he signed all of his posting with the words: COME WITH US, I SEE PASSION IN YOUR EYES. The Respondent's use of newspaper articles as evidence supporting his statements lends a certain appearance of legitimacy and an air of social commentary to his messages. In my view, it is likely that some will find these messages persuasive. I find that the content and manner in which the messages regarding Black people and other non-Caucasian races created a likelihood that members of these groups will be exposed to hatred and contempt. [83] One of the Respondent's most disturbing postings is found within a thread entitled Topeka May 15th Demonstration - Be There? on the Vanguard News Network. According to the Complainant's testimony, the participants in this discussion forum were discussing a counter demonstration in the United States to show their disapproval of the celebration of the anniversary of the United States Supreme Court decision in Brown v. Topeka Board of Education, 347 U.S. 483 (1954). That decision resulted in the desegregation of American schools. [84] In the posting beside the Respondent's pseudonym Thexder 3D, the Respondent described how he was denied entry to the United States to attend the counter-demonstration in Topeka. At the end of his description, the Respondent made an impassioned plea to the forum readers to print his sign, which he attached to his posting, and hold it up high for the world to see at the rally. He stated: I would love to see the faces on those Negroes and the Mud when they see my sign on TV. [85] The sign that was attached to the Respondent's posting consisted of a collage of four photographs with text superimposed over the photographs and then a second page of text. Three of the four photographs on the first page show the picture of a dead Black man from different angles. In each of the three pictures it appears that the man's brains are oozing from his smashed skull. The internal parts of his neck are also distended from a gash in his neck area. The fourth photograph shows a live Black man smiling and supporting the head of what appears to be a dead or unconscious Black man (perhaps the same man as the one in the other three photographs). [86] Superimposed over the photograph of the live Black man supporting the head of the dead or unconscious Black man (to the side of the image) are the words: Proudly Celebwating Afwikan Kultcha, at www.govnn.com. Then in the bottom left hand corner are the words Monrovia, Liberia. Around the perimeter of this collage of four photographs, one reads the following: JEWS PRODUCED ZIMBABWE DO YOU WANT AFRICA HERE? THINK WHITE MAN, WHITE WOMAN, IT DOESN'T HURT. [87] The second page of the attachment reads as follows: STOP THE GENOCIDE OF THE WHITE CREATOR RACE! FREEDOM OF ASSOCIATION FOR WHITES!' THOMAS JEFFERSON: TWO RACES, 'EQUALLY FREE, CANNOT LIVE IN THE SAME GOVERNMENT. CIVILIZATION IS A FUNCTION OF RACE. PROOF: HAITI vs ICELAND. Lim [IQ (COLOR)] = 0 color - black FORCED INTEGRATION IS MURDER OF WHITE CHILDREN! DID BLACKS RUIN YOUR SCHOOL YET? YOUR NEIGHBOURHOOD? YOUR CITY? YOUR STATE? YOUR COUNTRY? WHITE EUROPEAN CREATOR RACE MUST SURVIVE! [88] This would all appear to be part of the sign that the Respondent wanted the readers of his message to download and take to the demonstration in Topeka. [89] On a second occasion, the Respondent made use of photographic imagery to convey his message of hatred. In a posting he made within a thread entitled Chopping hands off, stoning, throwing kids from an overpass onto a busy highway, the Respondent asked his readers: What's next Toronto, this? He then posted a picture of a group of Black people, some holding the legs of an obviously dead Black man or boy whose body looked charred. The words that were superimposed above the photograph read: In Africa, this lynch mob lit this person on fire and dragged him through the streets, but not before beating him senseless. This horrifying image and invitation to contemplate whether this could happen in Toronto is followed by the Respondent's signature line: COME WITH US, I SEE PASSION IN YOUR EYES. [90] In a sea of words, pictures act as an irresistible lure to draw people in. Pictures also convey and distort meaning in very powerful ways. While there are undoubtedly some people that would find the imagery in the Respondent's material to be so nauseating they would immediately turn away, still others would be like highway motorists slowing down to see if anyone was bleeding at the roadside accident. The messages, which were superimposed over the photographs, would have a more powerful effect, in my view, when coupled with the strong feelings that are naturally aroused by seeing burnt and disemboweled bodies. They convey the impression that committing atrocities against other human beings is normal African culture or behaviour and suggest that these events could happen in Canada. The message is clearly that Blacks are a dangerous, murderous menace and worthy of nothing but the deepest feelings of disgust and loathing. Moreover, I find that the use of photographic imagery with incendiary words superimposed over them adds extra virulence to the hatred and contempt to which Black people would likely be exposed as a result of the messages. [91] For these reasons, I find that the messages on the VNN forum which were submitted in evidence during the hearing dealing with Black and other non-Caucasian races, and persons of African origin are likely to expose members of these groups to hatred or contempt. People of the Jewish Faith [92] The Respondent describes Jewish people in the most vulgar and hostile of terms. His basic theme is that Jewish people are a foul and evil people bent on destroying White European civilization. His messages exhort White Canadians to adopt his belief that Jewish people control the media and government and have invented or exaggerated the Holocaust in order to extort money from governments and institutions around the world. For example, in one posting, the Respondent takes issue with a statement by a member of a national Jewish organization regarding s. 319 of the Criminal Code, which deals with hate crimes. After stating that Jewish people are an alien race totally lacking in values, the Respondent asks a series of questions that are clearly designed to elicit the response that Jewish people are trying to manipulate Canadian laws. The Respondent asks: What do you think White Canadian? Should Jews be allowed to have any say or any influence whatsoever, direct or indirect, in forming laws in our Dominion? Ever hear None is too many? Do you know who said it? Do you know why? Do you know that Jews have been expelled, en masse, pretty much from every European nation at one time or another? From some even more than once. Why do you think that is? Do you think we should be passing laws to grant more freedoms to citizens or take freedoms away? What are Jews attempting to do? Why, why, why, damit ... why? While I still can ... FUCK YOU JEWS! YOU FUCKING HEEBES YOU FUCKING KIKES YOU FUCKING YIDS YOU FUCKING ZHIDS YOU FUCKING SHEENIES YOU FUCKING (what's the best word for Jews?) JEWS!!! [Damn it! I want bigger fonts! ☹] [93] In my view, the reason that the message above is likely to expose people of the Jewish faith to hatred and contempt lies not just in the abusive language that is used toward Jewish people, but also because it is highly likely to foster the idea that Jewish people are creating laws like s. 319 of the Criminal Code in order ruin the world for white Canadians. It creates the impression that if Jewish people are a dangerous menace to society. [94] In another posting, the Respondent provides his views that the Jewish Holocaust was a Jewish Holohoax designed to extort trillions of dollars from countries like Germany. He states: And what was all that crap I've heard about lampshades and soap in my high school history class? I'm still looking for detailed information on how the genial Germans turned a Jew into a bar of soap. They were, and still are, very creative people, so if there was a way I'm sure they would have found it. If they have indeed turned corpses of dead Jews into soap, I'd like evidence as to how they did it. [95] The trivialization and denial of the Holocaust is likely to provoke many reactions in people. For those who have lived through the Holocaust, it may lead to feelings of rage and despair that an experience that they lived through is being denied. In others, the allegation that the Holocaust is a hoax may well lead them to feel extreme anger that the world has been duped and robbed by Jewish people. This in turn leads to hatred and other feelings of deep resentment toward people of the Jewish faith. [96] The Respondent also used photographs to convey his hatred for Jewish people. For example, in his posting to the VNN website, he posted the picture of four girls over which he superimposed the words in large letters: Jews hate European beauty and nobility. All these girls were brutally murdered by savage commie Jews. We are coming for you, you Jew bastards, and there will be hell to pay. MURDERED BY JEWS. [97] The innocence and beauty of the picture of the four girls is powerfully contrasted to the savage allegation of murder. There is little that incites violent hatred more than allegations of the brutal murder of innocent children. This is essentially a poster advocating revenge against Jewish people. [98] Indeed, in one of his postings, in which the Respondent was expressing his rage about a statement that foreign workers are taking American jobs, he stated: When does the blood-bath begin? I'm reasonably well off, steady full-time job, not much expenditures, all bills paid on time without much hassle, however, I feel for all those white Americans, Canadians and Europeans who are loosing their life at the behest of the ZOG. I wouldn't mind one single bit if the Holy Racial War started tomorrow. (emphasis added) [99] The Complainant testified that within the neo-Nazi movement the expression, as it is commonly known Racial Holy War (sometimes shortened to Rahowa), refers to an apocalyptic race war. It is believed that, at some point in the future, all Whites will be forced to slaughter all of the other races in order to maintain what is perceived to be their supremacy. ZOG is the acronym for Zionist order government, which refers to the theory that Jewish people control the governments in all countries of the world. [100] In the posting above, the Respondent was clearly laying the blame for unemployment at the feet of Jewish people and suggesting that the slaughter of all non-Caucasian people would be the appropriate response. The inference that Jewish people are responsible for unemployment and poverty, in my view, is likely to expose them to extreme ill will that could well manifest itself in violent action. Conclusion: The Messages Constitute Hate Messages [101] I find that the messages in the Northern Alliance Guestbook, the Winnicki website and the VNN website and forum are likely to expose people of the Jewish faith, Black race and other non-Caucasian races, and persons of African origin to hatred and contempt. I base this conclusion on the following findings: the messages portray members of the target groups as sub-human filth that are worthy of nothing but the highest degree of contempt and hatred; they convey the idea that members of the targeted groups are dangerous, evil and a menace to White Canadians; they express virulent hatred toward members of the targeted groups in abusive and threatening terms; they exhort others to adopt the same position as the Respondent; and, they seek to justify, motivate and legitimize violent action against members of the targeted groups. The result is that the targeted groups are highly vulnerable to hatred, contempt and even violence as a result of the messages. [102] The Respondent argued that the messages were not likely to expose members of the targeted groups to hatred and contempt since anyone surfing the Internet would have fair warning of the content of the messages by the nature of the banners on the frames of the VNN. The banners of the VNN announce: White Revolution Panzerfaust Records and sometimes: Radio White Now Playing HateMonger - The Battle is not Over off of HateMonger. Therefore, according to the Respondent, people would have a choice whether to read the messages or not. [103] The same choice was available to people who called in to the telephone message service in the Taylor case to receive the messages that were found in that case to violate s. 13(1) of the Act. The Tribunal held that it was of no consequence that people accessed the message voluntarily, knowing what to expect. This did not affect the fact that the messages were likely to expose members of the targeted groups to hatred or contempt. In the same way, I find the fact that the banners provided some vague indication of the content of the website does not put the messages beyond the reach of s. 13(1). Whether some stumbled unintentionally upon the messages or others actively sought them out, there is, in my view, a strong likelihood that the messages would expose members of the targeted groups to extreme hatred and contempt. [104] Therefore, I find that, in repeatedly communicating, by means of the Internet, the messages that were entered into evidence at the hearing in this matter, the Respondent violated s. 13(1) of the Act. The Messages Where the Complainant is Named Personally [105] The Commission introduced eight messages into evidence where the Complainant was named personally. The Complainant was described as a Jew, a suspected Jew, a vile, acidic Jew and the suggestion was made that his motivation in filing human rights complaints was to seek money like all Jews. It was argued that, in the context of the Respondent's other messages that were likely to expose Jewish people to hatred or contempt, the identification of the Complainant as a Jewish person exposed him to the same hatred or contempt. [106] The messages in which the Complainant is named personally are as follows: (1) The first message was communicated on the VNN forum within a thread, or topic of discussion, entitled Anti-Semitism's Hateful Resurgence. The Complainant testified that this thread was started on January 17, 2004. The Respondent stated: ... Jews become increasingly insane each day trying to figure out how to censor the Internet. I myself already have been a victim of this when Bell Sympatico gave in to Jewish pressure, courtesy of Jew Richard Warman who works for the Canadian (kill the white men) Human Rights Commission. The fuckers didn't just delete the `offending' page (even after I changed the forbidden word Jews to Zionists) but also deleted all my programming and all my 3D art as well. As long as Jewish lies continue to fly, Jews will continue to reap billions and billions of dollars in extortion-reparations, so it's very important to the Jews to censor our Internet, sites such as the Zundelsite, VNN and others, but alas...TOO LATE YOU STUPID FUCKING JEWS, YOU (ADL, SPLC JDL, CJC et. al.) FUCKED UP! [This felt good.] Now it's just a matter of time. I praise those nerds who invented the Internet. I'm willing to bet money on it that exposing Jews was one of their objectives. (2) In another message communicated on March 13, 2004 on the VNN Forum within a thread entitled Americans are not humans, the Respondent stated: I myself have fallen under the Jew radar when a vile, acidic Jew - Richard Warman (he says he's NOT a Jew) launched a complaint against me to the CHRC [Canadian Human (read 'Kill the White Men') Rights Commission]. It was mostly because of some comments I made on the Northern Alliance's, now defunct, guestbook and a picture of Tsar's daughters that I (and others) circulated around the net. Maybe you've seen it, it was posted on VNN once. (3) On August 23, 2004, the Respondent communicated a message on the VNN Forum entitled: My reply to Randy Richmond's article. In this message, the Respondent referred to an article in the London Free Press written by Randy Richmond dated August 18, 2004. The London Free Press article described the fact that the police had launched a criminal investigation into the Respondent's activities. It provided quotes from a number of sources, including the Complainant, conveying their opinions about the impugned messages. In response to this newspaper article, the Respondent asked: Why am I threatened with the police, 4 anti-white European organizations (ironically funded by White Europeans) and possibly Jewish lawyer for doing so? Why aren't the police doing their job protecting our White European society and shipping out negroes back to their natural habitat ... Africa? Again on August 24, 2004, the Respondent wrote: Does Warman = Jewman? Why doesn't Warman go to Israel and speak out against the Israeli's racism and horrific oppression of the poor Palestinian peoples? (4) Later, on August 24, 2004, in another message within the same thread the Respondent stated: I suspect Warman is a JEW. The word JEW is written in capital letters and is then repeated 117 times with the final JEW in enlarged, bolded capital letters followed by three exclamation marks. The comment then continued with the following: Oh, by the way. Thanks to Warman, Bell has canceled my email account, which was very important to me at the time since I was trying to sell a piece of software I wrote. (5) In a message communicated on September 9, 2004, the Respondent commented on another human rights case involving the Complainant which dealt with allegations of hate messaging contrary to s. 13(1) of the Act. In that case, like the present case, the Complainant sought damages for being personally targeted. The thread is entitled JOG goes after Webhosting ISP's. The Respondent stated: Note, those worthless fucking lawyers want $80,000 in...'reparations'. OY VEY!!! OY PAY!!! How very, very JOO-ISH, demanding free money. I suspect most of it would go to Mr. Vermin, whom I suspect to be a JEW. That's what he does people. The scumbag surfs around on the Internet, looking for any remotely pro-White European site and if he finds anything remotely `offensive' to our privileged minorities in Canada, he files a complaint to the CHRC (Canadian Human Rights Commission - hates white people). When the case goes to a tribunal he hopes the accused will give up. After that he takes them to the small claims court and sues them for like $9999.99, just below the $10,000 mark so it's still under the small claims court jurisdiction (if I'm not mistaken, the mark may be set to $5000, in which case he'd sue them for $4999.99). When he wins, he gets the money, and that's how he makes his living, so I suspect. Probably gets tons of handouts from his JOO-ISH buddies in CJC (Canadian Jewish Congress) who get millions of free dollars, care of the Canadian ZOG, financed by the White Canadian taxpayer. Some civilization builders those JOOZ, eh? Always trying to get something for nothing. $6 billion from the Swiss banks, $6 trillion from the U.S. government, $6 trillion from the German government, $6,000 from a local 'white hater'. Good business ITZ, no? (6) On September 11, 2004, the Respondent started a thread entitled Suspected JEW Richard Warman attacks Whites in Canada ... again. This thread referred to human rights complaints that had been filed by the Complainant against other individuals. Following the heading, the Respondent re-posted material from a third party that referred to the Complainant as a professional campaigner against free speech and a censor. (7) On October 29, 2004, the Respondent initiated a thread with the following: Richard Warman is at it again. FUCK YOU THOUGHT POLICE. (8) In May 2005, the Respondent communicated a number of messages within a thread that was entitled Jews and anti-White European haters launch a new assault on a White Freedom Fighter. Most of the Respondent's messages in that thread related to an open letter that was drafted and publicly released by a number of groups and individuals such as the Complainant, calling for police and government action against the Respondent. In one of the messages within that thread, the Respondent provided a list of what purported to be recent human rights complaints against what he called Nationalist and pro-White activists in Canada. The complaint against the Respondent that gave rise to these proceedings was first on that list. [107] In yet another message within that thread, the Respondent wrote a heading in large, block, bold letters: MY ENEMIES. After this heading, the Respondent posted photographs of three individuals, one of whom was the Complainant. On each of the foreheads of the three photographed individuals, a Star of David was superimposed. Then, at the base of the pictures, are the captions: Most likely a Jew, Possible Jew and Honorary Jew. The Complainant is described as Possible Jew. [108] In all but one of the above messages, the Complainant is portrayed as a vile, acidic Jew, suspected Jew, Mr. Vermin or simply a Jew and the allegation is made that, like other Jews (according to the Respondent) the Complainant is extorting money from White Canadians and suppressing free speech. [109] The Complainant testified that he is not, in fact, Jewish. However, I agree with other members of this Tribunal that it does not matter whether Mr. Warman was in fact Jewish or not. A person who is perceived to have the characteristics of someone who falls within one of the prohibited grounds of discrimination may be the object of discrimination, even though he does not actually have those characteristics (School District No. 44 (North Vancouver) v. Jubran, 2005 BCCA 201 at para. 41, leave to appeal to S.C.C. refused; see also Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City), [2000] 1 S.C.R. 665). Taken in this context, the Complainant was, in my view, identifiable on the basis of a prohibited ground of discrimination. [110] The tone of the messages is extremely hostile and threatening. The messages convey the clear impression that the Complainant, as a perceived member of the Jewish faith, is a contemptible human being worthy of nothing more than the deepest hatred. The allegation that the Complainant's activities are part of a larger international Jewish conspiracy to extort money from non-Jewish people is likely, in my view, to expose the Complainant, as well as members of the Jewish faith, to deep feelings of anger, resentment and hatred. [111] Therefore, I find that the messages in which the Complainant is named personally violate s. 13(1) of the Act. E. Question 5 - Did the Respondent Retaliate or Threaten Retaliation Against the Complainant? [112] Section 14.1 of the Act makes it a discriminatory practice to retaliate or threaten retaliation against the alleged victim of a discriminatory practice or the person who has filed a human rights complaint. This provision in the Act is important because, without it, many would be hesitant to complain about discrimination for fear of reprisal. It provides complainants and alleged victims of discrimination with the assurance that, if action is taken or threats are made against them as a result of the filing of the complaint, redress will be provided. Section 14.1 may also act as a deterrent to those who would take action or threaten action against someone who has filed a complaint either to punish the complainant or to coerce the complainant to withdraw the complaint. [113] What kind of conduct constitutes retaliation or threats of retaliation within the meaning of s. 14.1? The following are examples of some of the conduct that this Tribunal has found to violate s. 14.1: [114] sending a letter to the complainant's employer in an effort to have the complainant fired from his employment (Kyburz, supra, at para. 73); threatening the complainant's life (Kyburz, supra, at para. 74); threatening to ruin the complainant's career and life (Kyburz, supra, at para. 75); refusing to renew a work contract (In Nkwazi v. Canada (Correctional Service) [2001] C.H.R.D. No. 1) at para. 233, the Tribunal found that this action constituted retaliation but held that the actions predated the entry into force of the retaliation provisions); publishing derogatory remarks about the Complainant (Bressette v. Kettle and Stony Point First Nation Band Council 2004 CHRT 40 at para. 58) revoking the complainant's position on an Annual General Assembly (Bressette v. Kettle and Stony Point First Nation Band Council 2004 CHRT 40 at para. 60) [115] Is it necessary to prove that the Respondent intended to cause the Complainant or the victim harm in order to prove retaliation? Some members of this Tribunal are of the view that proof of intent is necessary in retaliation complaints. (see, for example: Roger Virk v. Bell Canada (Ontario) 2005 CHRT 2 at para. 156). Other members have held that, if a complainant reasonably perceived the impugned conduct to be in retaliation for the laying of a human rights complaint, this could amount to retaliation quite apart from any proven intention of the Respondent (see, for example: Wong v. Royal Bank of Canada [2001] C.H.R.D. No. 11 (Q.L.) at para. 222; Bressette v. Kettle and Stony Point First Nation Band Council, supra, at para.) However, the reasonableness of the complainant's perception must be measured. Respondents should not be held accountable for any unreasonable anxiety or undue reaction of complainants. [116] I am inclined to follow the line of reasoning in Wong and Bressette. In my view, it is in keeping with the Supreme Court's statement in Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84, that the Act is remedial in nature, not punitive, and that therefore, the motives or intention of those who discriminate are not central to the concerns of the Act. [117] In the present case, the Commission argued that the same eight messages in which the Respondent named the Complainant, and which were found to be violations of s. 13(1), also violate s. 14.1 of the Act. While it is possible that the same conduct will be found to have violated more than one provision of the Act, the question then arises as to whether, in the circumstances of the case, it is reasonable to provide compensation twice for the same conduct. I will address that issue later in the Remedies section of my decision. [118] The question at this stage of the analysis is whether the Complainant reasonably perceived that the impugned messages were retaliatory or were threats of retaliation for filing a human rights complaint against the Respondent. [119] As has been noted, the messages described the Complainant in highly derogatory terms. In all but one of the above-noted postings, the Complainant is referred to as a Jew, a vile acidic Jew, or a suspected Jew. I find that the messages were very threatening. The last message in which a Star of David is superimposed over a photograph of the Complainant is particularly disturbing. It looks decidedly like a target mark. [120] The Complainant testified that he was so alarmed about the last posting that he contacted the police to determine whether charges of uttering threats could be laid against the Respondent. He also consulted with a lawyer about the possibility of seeking a peace bond against the Respondent. In the context of the Respondent's other messages encouraging the annihilation of the Jewish people, I find that the messages could reasonably be perceived as retaliation or threats of retaliation. [121] The question is whether the messages were posted in retaliation for the filing of the human rights complaint against the Respondent. [122] The evidence disclosed that there was a history of animosity between the Complainant and the Respondent. It was clear from the evidence that the Complainant took a number of actions against the Respondent in an effort to stop the latter from using the Internet to communicate hate messages. In August and September of 2003, the Complainant complained to the Respondent's internet service provider about the Respondent's website. The Respondent's website was subsequently shut down. [123] On September 7, 2003, the Complainant filed a human rights complaint against the Respondent. After filing the human rights complaint, the Complainant testified that he took further action against the Respondent including: complaining to the London Police about the Respondent's Internet messages, participating with a number of other organizations in an open letter calling for action against the Respondent, providing information to a London Free Press reporter about the Respondent and giving a speech at a conference in Toronto that included a discussion about the Respondent's case. [124] The Respondent was clearly angry with the Complainant for taking these actions against him and other white nationalists. He communicated his anger through the series of messages on the VNN Forum that were listed above. All of the postings post-date the filing of the human rights complaint. However, not all of the messages make mention of the human rights complaint against the Respondent. [125] In Bressette, the Tribunal stated that when there has been a history of conflict between the complainant and the respondent it can be difficult to discern whether certain incidents arose simply as a result of the ongoing conflict, or whether they were linked to the human rights complaint (Bressette, supra, at para. 52). The Tribunal adopted an approach in that case which I think is appropriate in the present case. [126] The Tribunal member in Bressette first determined whether he could accept, on a prima facie basis, that the human rights complaint was at least one of the factors influencing the differential treatment that the Complainant received. After he found that he could, the onus then shifted to the Respondent to provide a credible explanation for the treatment. [127] Although not all of the messages made reference to the Complainant's human rights complaint against the Respondent, I think that it is a reasonable perception that the filing of the complaint was at least one of the factors influencing the Respondent's conduct towards the Complainant. The postings were all made after the filing of the human rights complaint. At least three of the postings specifically mention the human rights complaint against the Respondent or the Complainant's use of the human rights process to extort money from people like him. [128] Clearly there were other actions taken by the Complainant which angered the Respondent and may have played a role in the Respondent's communication of threatening messages about the Complainant. However, the Respondent, who chose not to testify, provided no evidence whatsoever that would rule out a finding that the filing of the human rights complaint against the Respondent was at least one of the factors influencing the posting of the messages. Conclusion Regarding Retaliation [129] For the foregoing reasons, I find that the above-noted messages constitute retaliation or threats of retaliation against the Complainant for the filing of a human rights complaint, contrary to s. 14.1 of the Act. IV. REMEDIES [130] Counsel for the Respondent raised several general arguments with respect to remedies that merit some discussion. First, counsel argued that compensation and a penalty would be inappropriate in this case since the only remedy that was subjected to constitutional scrutiny by the Supreme Court in Taylor was the cease and desist order. Therefore, any other remedy is constitutionally uncertain. This argument ignores the fact that in Schnell, the Tribunal held that the penalty and special compensation provisions that were provided in the post-Taylor amendments to the Act did not push s. 13(1) over the line into unconstitutionality. Furthermore, for reasons that I will provide in the section dealing with the penalty provisions under s. 54(1)(c), I am of the view that the Tribunal cannot refuse to apply the law out of a fear of constitutional uncertainty. [131] The Respondent's second argument is that the Complainant's conduct militates against an award of compensation or a penalty. Specifically, counsel argued that there was evidence that the Complainant not only encouraged the Respondent to violate the Act, but also that he participated in the violation of the Act and in the violation of the Federal Court injunction order. Counsel further alleged that the Complainant engaged in violent and criminal activities. She argued that any order against the Respondent would effectively condone the Complainant's conduct in that regard and, therefore, should not be made. [132] The Respondent is free to pursue any claims he might have with regard to the Complainant's conduct in the appropriate venue. However, my consideration of the evidence is limited to a determination of whether this evidence affects the Complainant's credibility regarding the pain and suffering he experienced as a result of the retaliatory messages. Beyond this issue, the evidence has no relevance. [133] Although it is customary to address the remedies for breaches of the hate message provision before the retaliation component, I have decided to reverse that order for reasons of logical consistency, which will become apparent later in this decision. A. Retaliation - Section 14.1 [134] Section 14.1 provides that it is a discriminatory practice to retaliate against a person who has filed a human rights complaint. Section 53 authorizes the Tribunal to make certain orders against a person found to be engaging or to have engaged in a discriminatory practice. Section 53(2) provides a wide range of potential orders that may be made. [135] In the present case, the Commission and the Complainant have requested the following orders: An order that the Respondent cease and desist from retaliating against the Complainant for having filed a human rights complaint against him; An order that the Respondent provide the Complainant $20,000 in compensation for pain and suffering; An order that the Respondent provide the Complainant with special compensation in the amount of $20,000; An order that the Respondent compensate the Complainant for his expenses related to the hearing which were not otherwise covered by the Commission. (i) Cease and Desist Order [136] The Respondent argued that a cease and desist order would send the wrong message to the Respondent. It would communicate to him the idea that disagreeable thoughts are not permitted in Canadian society. This is not true. Disagreeable public messages are permissible as long as they do not violate the law. In this case, the Respondent violated s. 14.1 of the Act by retaliating or threatening retaliation against the Complainant by means of Internet communications. The evidence indicates that he was doing so right up until the hearing in this matter began. Illegal conduct of this nature must not be permitted to continue. [137] Therefore, pursuant to s. 53(2)(a) of the Act, the Respondent is ordered to cease and desist from retaliating against the Complainant for having filed his human rights complaint with the Canadian Human Rights Commission. This order covers retaliatory conduct including, but not limited to Internet postings, whether on the VNN forum or elsewhere on the Internet, that is similar to the material that was entered into evidence during the hearing into this matter. The Respondent is directed to cease his retaliatory activity immediately upon becoming aware of the Tribunal's decision. (ii) Compensation for Pain and Suffering [138] Section 53(2)(e) allows the Tribunal to order that the Respondent compensate the victim in an amount not exceeding $20,000 for any pain and suffering that the victim experienced as a result of the discriminatory practice. [139] The Complainant testified that, in the context of the Respondent's stated desire to see the world rid of Jewish people and knowing what he knows about the Second World War, he was alarmed by the repeated references to him as a Jew. He was alarmed because the postings were going to a fairly large neo-Nazi forum. He stated that there was an extensive history of violence within the neo-Nazi movement and, therefore, he feared he would be made a target of violent attack. [140] This fear increased when he saw the picture of himself with the Star of David superimposed over his forehead. The Complainant testified that the location of the Star of David on his forehead gave him the impression that a target mark had been placed on his forehead. As a result, he contacted the police to determine whether charges of uttering threats could be laid against the Respondent. He also consulted with a lawyer about the possibility of seeking a peace bond against the Respondent. [141] The Complainant claims to have been so alarmed and frightened that compensation in the amount of $20,000 would be appropriate. This is the maximum allowed under section 53(2)(e) of the Act. [142] Counsel for the Respondent argued that the Complainant was not to be believed when he testified that he experienced pain and suffering as a result of the retaliatory messages. Respondent Counsel tendered evidence that, she claimed, discredited the Complainant's testimony in that regard. [143] Counsel also argued that the evidence indicated that the Complainant's conduct with regard to this matter was so reprehensible that an award for pain and suffering would be inappropriate. This argument, however, runs counter to the statements made by the Federal Court in Pitawanakwat v. Canada (A.G.) [1994] 3 F.C. 298. There the Court said that to deny an award for hurt feelings on the basis of the conduct of the complainant is, in effect, to condone discrimination on the basis of a prohibited ground where the conduct of the complainant is, for whatever reason, less than exemplary. [144] Thus, my consideration of the following evidence is strictly limited to its impact on the credibility of the Complainant's claim to have experienced pain and suffering. Evidence Regarding the Extent of the Complainant's Pain and Suffering [145] The evidence regarding the Complainant's credibility consisted of: a Statement of Claim by the Complainant against Mr. Paul Fromm for libel, two video tapes about the Complainant's alleged involvement in violent activities, speaking notes from a speech that the Complainant gave to the ARA annual meeting; newspaper articles about the Complainant written by Mr. Randy Richmond and published in the London Free Press, and postings made by the Complainant on the VNN Forum. [146] I permitted the evidence to be admitted on the basis that it was relevant to the question of whether the Complainant had experienced pain and suffering as a result of the alleged retaliation against him by the Respondent. However, I reserved my decision as to what weight I would give the evidence until after I had heard the entire case and was rendering my decision. The libel suit and the London Free Press Article by Randy Richmond [147] The Respondent tendered a Statement of Claim filed in the Ontario Superior Court of Justice indicating that the Complainant was suing Mr. Paul Fromm for statements the latter made that were allegedly libelous and slanderous. The Respondent also produced a newspaper article from the London Free Press dated March 31, 2005, in which some of the same statements that were said to be libelous in the law suit were reproduced. Specifically, Mr. Fromm is alleged to have called the Complainant, among other things, the high priest of censorship. This label was reproduced in Mr. Richmond's Free Press article. The Complainant admitted that he provided Mr. Richmond with some of the quotes that were used in the article. [148] It was argued that this evidence demonstrated that the Complainant is not to be believed when he says that he has suffered because, on the one hand, he sued Mr. Fromm for statements that Mr. Fromm allegedly made about him and, on the other hand, he offered these same statements to Mr. Richmond and did not complain when these statements were reproduced in the London Free Press article. [149] I accord little weight to this evidence. Firstly, the evidence does not prove that the Complainant did not suffer any pain and suffering as a result of the allegedly libelous remarks. Secondly, the allegedly libelous statements are different from the allegedly retaliatory messages in this case. Thus, it would not be reasonable for me to draw inferences about the Complainant's reaction to the retaliatory messages in the present context based on the allegedly libelous statements in the other case. [150] The Complainant's Speaking Notes For a Speech entitled Maximum Disruption: Stopping Neo-Nazis By (Almost) Any Means Necessary and a Video of CBC coverage of the Zundel Demonstration [151] A copy of speaking notes from a presentation that the Complainant gave on July 6, 2005 to the annual meeting of a group known as Anti-Racist Action (ARA) was entered into evidence. The speech was entitled: Maximum Disruption: Stopping Neo-Nazis By (Almost) Any Means Necessary. The Complainant testified that he is not a member of the ARA. He testified that he was invited by the group to give the speech and that it was similar to ones he had given at other events. [152] In his speech, the Complainant testified that he presented what he called a broad front approach to dealing with Neo-Nazi activity in Canada. This approach involved working with the police, the Canadian Human Rights Commission and other organizations to create maximum disruption within what he perceives to be the Neo-Nazi movement in Canada. The Complainant analyzed three different cases in which he was involved, and showed how the broad front approach played out in those cases. [153] The Complainant's notes indicate that he uses the maximum disruption approach when it is most helpful or even if he just feels it will be the most fun. In his notes, he also stated that if he found someone particularly annoying he would move them up the list a bit. [154] In cross-examination, the Complainant testified that when he stated, during his speech, that he derived fun from the maximum disruption approach and that he moved people up the list when he found them annoying, he was attempting to be humorous. He testified that, like anyone, he took some pleasure in doing meaningful work, but that the work to stop White nationalists from spreading hate on the Internet had caused considerable hardship to himself and to his family. [155] One of the three cases that the Complainant discussed during his speech was that of the Respondent. Another was the case of Ernst Zundel. In the context of his discussion on the Zundel case, the Complainant expressed his disapproval of serious incidents that had occurred when mail bombs were sent to Mr. Zundel and his bunker was severely damaged by an arsonist. [156] The Complainant testified that he had intended to show a photograph of the Respondent during the speech. However, the equipment needed to project the photograph was not available and, therefore, the picture was not shown. [157] During the hearing, I viewed a video from a CBC program of a physical confrontation that occurred between members of the ARA and pro-Zundel supporters during a demonstration in support of Mr. Zundel in September, 2004. In his speech to the ARA, the Complainant noted that the Respondent had been part of the Zundel demonstration and that the Respondent had been charged with a criminal offense when weapons were found in his car on this occasion. The Complainant stated, in his speech: The demonstration they were headed for, of course, was one where Anti-Racist Action Toronto was going to be attending to ensure that public support for one of the world's worst Holocaust-deniers would not go unopposed. [158] I was invited to conclude that these comments signaled the Complainant's tacit approval of the violence that erupted at the Zundel demonstration. I see no basis for this conclusion. The Complainant makes no mention whatsoever of the physical confrontation between the two groups in his speech. The fact that he did not mention the confrontation does not, in my mind, signal his approval for the violence that occurred after the demonstration. Moreover, in my view, whether the Complainant approved of the ARA's tactics and its alleged tendency toward violence is not relevant to the question of whether the Complainant experienced pain and suffering as a result of the retaliatory messages. [159] I find, however, that the Complainant's speaking notes do suggest a certain robustness of spirit and even an enjoyment of the thrust and parry of the battle. His ability to derive pleasure out of his maximum disruption approach and to use it to deal with people he finds annoying, suggests a degree of imperviousness to the pain and suffering that some victims might experience as a result of retaliation. [160] I also find it significant that the Complainant would be prepared to display a photograph of the Respondent to members of the ARA and call him a nasty piece of work only a few months after the Respondent had posted a picture of the Complainant on the Internet. The nature and tone of this reaction suggests a resiliency that is not consistent with a claim to have suffered greatly as a result of the Respondent's retaliatory messages. [161] I find, however, that the video about the confrontation between members of the ARA and pro-Zundel supporters deserves minimal weight. The confrontation did not involve the Complainant and, as I stated above, I find no indication in the evidence that the Complainant condoned the violence that occurred there. I stand by my ruling during the hearing that the violent or non-violent nature of the ARA was not relevant to the inquiry. The David Icke Video [162] During the hearing, a video was tendered regarding the Complainant's involvement in action taken against an individual by the name of David Icke, who was in Vancouver on a speaking tour a number of years ago. Mr. Icke, who wrote a book involving a conspiracy theory, was apparently considered by some to be a proponent of anti-Semitism. [163] Most of the video deals with Mr. Icke's activities and beliefs. However, there is a point in the video where the Complainant is shown having a beer with some people and discussing an event at a Vancouver book store where Mr. Icke would be present to sign his book. Although it was not entirely clear, it would appear that the Complainant suggested that a pie might be thrown at Mr. Icke during the book signing. The video shows that this pie was eventually thrown at Mr. Icke. [164] I find that the video has little weight. It is based on incidents that occurred in March 2000. This predates the complaint by a significant amount of time. It does, however, lend limited support to the finding that the Complainant has a combative spirit that may render him somewhat impervious to threatening behaviour. The Complainant's Participation in the VNN Forum and Cooperation with Journalists [165] The Complainant participated in the VNN Forum under the pseudonym Axetogrind. He testified that he did so in order to monitor the website. To do this, he would pose as someone who was interested in or supportive of the ideas that were being expressed in the Forum. He would ask questions such as So what, you're going to keep us in suspense? and, at times, he would express his agreement with comments made on the Forum. In cross-examination, the Complainant was asked whether his questions were attempts to get the Respondent into more trouble. The Complainant denied this, stating that the questions were posed in order to get clarification on issues that the Respondent had previously raised. The evidence revealed that the Complainant made 32 postings to the VNN Forum. [166] The Complainant also testified that he provided quotes from the Respondent's messages to journalists. [167] The Respondent argued that the Complainant's participation in the VNN Forum and the provision of quotes to journalists demonstrated that the Complainant was not particularly sensitive to the kinds of comments that were made about him in the retaliatory messages. That is debatable. I do think that even the most battle-hardened individual may experience emotional suffering when the line is crossed between the expected exchange between two opponents and an escalated attack. However, taken together with the other evidence of the Complainant's campaign against hate messages, the evidence of the Complainant's involvement in the VNN Forum and the provision of quotes to a journalist suggests that the Complainant may have developed a certain emotional detachment and hardiness as compared to other victims of retaliation. Conclusion Regarding the Complainant's Pain and Suffering [168] I believe that the Complainant was concerned when he read postings describing him as a vile acidic Jew, a suspected Jew and other similar terms. In the context of the Respondent's clearly expressed animosity toward people of the Jewish faith, the Complainant's concern was understandable. However, I am not persuaded that the degree of anxiety he experienced justifies the maximum award under s. 53(2)(e). [169] The evidence indicated that the Complainant has extensive experience and involvement in organized activities aimed at combatting hate propaganda. Indeed, he has been invited to speak at a number of public events because of his expertise in this area. It is to be expected that involvement in activities of this nature would expose one, on a regular basis, to a certain amount of abusive talk and threatening behaviour. Nevertheless, there is still a line that can be crossed and, suddenly, the situation becomes more serious. Did the Respondent cross that line when he posted a picture of the Complainant on the VNN Forum with the Star of David on his head that looked decidedly like a target mark? [170] The difficulty I have with the Complainant's claim to have suffered greatly is that a month or two after the posting with his photograph was made, he was able to publicly state, in a speech to the ARA, that he uses his maximum disruption approach, which includes the laying of human rights complaints, whenever he thinks it will be most helpful or even if he just feels it will be the most fun. He also indicated that he files human rights complaints against neo-Nazis starting on a worst offender basis, although if he finds people to be particularly annoying this may move them up the list a bit. [171] It appears to me that there was a certain amount of saber rattling that went on between the Complainant and the Respondent and this does not appear to have immobilized the Complainant with fear. Indeed, although he stated that he was extremely concerned about the photograph of himself on the Internet, the Complainant subsequently intended to publicly display the Respondent's picture at the ARA conference, and in his speech he called the Respondent a nasty piece of work. That kind of conduct is not suggestive of someone who is terribly alarmed by the Respondent. Rather, it suggests somewhat of a cavalier attitude and even a whimsical mockery of the Respondent's activities. I agree with the Respondent that this lends an air of implausibility to the Complainant's claim to have suffered to such an extent that a damage award in the order of $20,000.00 would be warranted. [172] Thus, I find that although the Complainant likely experienced some concern about the retaliatory messages, he appears to be a very resilient person who is somewhat impervious to threats and insults. Therefore, in all the circumstances, I am of the view that an award of $500 for pain and suffering is appropriate. (iii) Special Compensation [173] Section 53(3) of the Act provides that the Tribunal may award compensation in an amount not exceeding $20,000 to the victim where a respondent has engaged in the discriminatory practice willfully or recklessly. [174] I find that the Respondent either intended to retaliate against the Complainant or he acted in reckless disregard of the consequences of posting the messages about the Complainant. [175] There are two messages which provide evidence that the Respondent intentionally retaliated or threatened retaliation against the Complainant for filing a human rights complaint against him. In the posting made on March 13, 2004, the Respondent stated that he had fallen under the Jew radar when a vile acidic Jew - Richard Warman (he says he's NOT a Jew) launched a complaint against him. [176] The second message is the one communicated in May 2005, in which the Respondent displayed the Complainant's picture under the heading My Enemies with the Star of David emblazoned on his forehead. Within that same thread, the Respondent provided a roundup, or a list of the human rights complaints against White nationalists and placed the complaint against him first on that list. I find that the proximity of the My Enemies posting to the list of human rights complaints gives rise to an inference that the enemies posting was also intended as retaliation or a threat of retaliation for the human rights complaint. [177] On the basis of the above-noted evidence, it can reasonably be inferred that the other messages in which the Respondent refers to the Complainant in derogatory and threatening terms were part of an intentional campaign on the part of the Respondent to retaliate against the Complainant. While there were other reasons that could have motivated the Respondent to target the Complainant, there was no evidence of targeting before the complaint was filed. Therefore, I find that a significant factor influencing the Respondent's retaliatory conduct was the fact that the Complainant had filed a human rights complaint against him. [178] In determining the appropriate quantum for an award under s. 53(3), the Tribunal's focus is on the Respondent's conduct and not on the effect that this conduct has had on the Complainant. (See for example: Milano v. Triple K. Transport Ltd. 2003 CHRT 30; Woiden v. Lynn [2002] C.H.R.D. No. 18 (Q.L.); Bressette v. Kettle and Stony Point First Nation Band Council, supra; Kyburz, supra). The effects of the conduct are considered when remedies are ordered under s. 53(2) of the Act. [179] Counsel for the Respondent argued that the term compensation must involve compensation for a loss, intangible though it might be. Therefore, the extent to which the Complainant suffered as a result of the retaliatory action must be relevant in determining the quantum of an award for compensation under s. 53(3). [180] I disagree. In my view, the wording of s. 53(3) clearly indicates that compensation is provided for the willful and reckless nature of the Respondent's conduct. There is no indication in s. 53(3) that the victim's suffering must be established in order to make an award for compensation. The provision for compensation for willful and reckless discriminatory conduct under s. 53(3) is separate from s. 53(2)(e) which provides for compensation for pain and suffering. Section 53(3) makes no reference whatsoever to s. 53(2). Thus, in my view, s. 53(3) is aimed at providing compensation for willful and reckless discriminatory conduct regardless of its effects on the complainant. The effects of the respondent's conduct are considered when remedies are ordered under s. 53(2) of the Act. [181] Given the willful nature of the Respondent's discriminatory conduct, and in particular his brazen use of the Complainant's photograph with what looked like a target mark on his forehead, I am of the view that the appropriate award for special compensation, pursuant to s. 53(3) of the Act, is $5,000. (iv) Expenses Related to the Hearing [182] On behalf of the Complainant, the Commission requested compensation from the Respondent for reasonable travel, meal and accommodation costs incurred by the Complainant in order to attend the hearing. The Commission stated that the venue was not within commuting distance to the Complainant's residence. Therefore, he incurred costs that he would not have incurred had he not been a victim of the discriminatory practice. The Commission paid for a portion of those expenses because the Complainant appeared as a witness for the Commission. However, the Commission argued that, in accordance with the goal of making the victim whole, the Respondent should reimburse the Complainant for that portion of his travel, meal and accommodation costs that were not covered by the Commission. There was no evidence provided as to what these costs might be. [183] Section 53(2)(c) provides that, where the complaint is substantiated, the Tribunal may compensate victims for any expenses incurred as a result of the discriminatory practice. The power to award compensation under this provision, like all orders under s. 53, is discretionary. It is true that the exercise of the Tribunal's remedial discretion is guided by the principle of making the victim whole. However, not all expenses incurred as a result of a Tribunal hearing have been found to be sufficiently connected to the discriminatory practice to permit them to fall within the reach of s. 53(2)(c). For example, in Attorney General of Canada v. Lambie, (1996), 124 F.T.R. 303 (F.C.T.D.) at para. 41, the Federal Court held that the word expense is not broad enough to cover time spent in preparation for a hearing except in exceptional circumstances. [184] It is not at all clear that travel, accommodation and meal expenses are the kind of expenses contemplated by s. 53(2)(c). Indeed, counsel for the Commission conceded that she could not find any authority for such an award. Unlike the situation in Brown v. R.C.M.P., 2004 CHRT 30, the expenses in this case are not directly related to presenting a case before the Tribunal; they are one step removed from the actual presentation of a case. Moreover, I am of the view that there is nothing exceptional about the circumstances that would warrant an award for reimbursement of travel, meal and accommodation costs in the present case. [185] The Complainant, who testified that he is a lawyer, represented himself during the hearing. The Canadian Human Rights Commission, whose role is to represent the public interest, was represented by two lawyers. Although not always the case, in the present inquiry the interests of the Commission and the Complainant were well aligned. Indeed, the Commission called the Complainant as a witness and therefore, according to Commission counsel, was able to cover some of the expenses that the Complainant incurred as a result of the hearing into this matter. [186] For these reasons I am not convinced that it would be appropriate to order the Respondent to reimburse the Complainant's travel, accommodation and meal costs. I, therefore, decline to make the order requested by the Commission under s. 53(2)(c). (v) Interest [187] Section 53(4) provides the Tribunal with the authority to include an award of interest. Interest shall be paid on the monies awarded pursuant to this decision in accordance with Rule 9(12) of the Canadian Human Rights Tribunal Rules of Procedure. Interest will start to run from the date of this decision to the date of payment. In no case, however, should the total amount payable under s. 53(2)(e), including interest, exceed $20,000: Hebert v. Canada (Canadian Armed Forces), (1993), 23 C.H.R.R. D/ 107 (F.C.T.D.). The same is true for the award under s. 53(3). B. Hate Messages - Section 13 [188] Section 54 sets out the orders that may be made with respect to hate messages. It incorporates, by reference, certain orders that may be made under section 53 for other cases of discrimination. Thus, an order under s. 53(2)(a) may be made which includes, among other measures, an order that the person cease the discriminatory practice. In addition, s. 54 authorizes orders under s. 53(3) to compensate a victim who has been specifically identified in the discriminatory messages. Finally, there is provision for a penalty under s. 54(1)(c) of not more than ten thousand dollars. [189] The Commission and the Complainant have requested the following: an order that the Respondent cease and desist the communication of messages like the ones that were the subject of the section 13 complaint; an order that the Respondent provide the Complainant with special compensation in the amount of $20,000. an order that the Respondent pay a penalty in the amount of $10,000. (i) Cease and Desist Order [190] Respondent counsel argued that a cease and desist order would produce undesirable effects. It would communicate the message that disagreeable thoughts cannot exist in Canada and it may, in fact, promote the expression of such thoughts through other means that are less peaceful than Internet messages. Finally, a cease and desist order would serve to further alienate the Respondent from Canadian society. [191] I cannot agree. The Respondent is free to express his thoughts and ideas, as disagreeable as those may be, provided they do not violate the law. The Respondent chose not to testify during the hearing. However, while he was representing himself during the early part of the hearing and during the case management process, he struck me as a respectful, reasonable and straightforward man. He did not behave in a belligerent fashion. He attempted to put forward his point of view with quiet reason. It is to be hoped that in the future, the Respondent will maintain that same composure and respectfulness in his communications with the rest of the world through the Internet. [192] It should also be noted that, in deciding whether to issue a cease and desist order, the potential impact of such an order on the Respondent is not my only consideration. I must also consider the likely impact of a cease and desist order on other members of Canadian society such as those who are likely to be exposed to hatred or contempt as a result of the Respondent's messages. As the Supreme Court of Canada noted in Taylor, the process of hearing a complaint made under s. 13(1) and, if substantiated, issuing a cease and desist order reminds Canadians of our fundamental commitment to equality of opportunity and the eradication of racial and religious intolerance (Taylor, supra, at para. 53). Therefore, I am of the view that a cease and desist order is entirely appropriate in the present case. [193] Accordingly, the Tribunal orders that the Respondent, Mr. Tomasz Winnicki cease the discriminatory practice of communicating by the means described in s. 13 of the Act, namely the Internet, material of the type that was found to violate s. 13(1) in the present case, or any other matter of a substantially similar content that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or persons are identifiable on the basis of a prohibited ground of discrimination. (ii) Section 54(1)(b) - Special Compensation [194] Section 54(1)(b) provides the Tribunal with the authority to issue an order under subsection 53(3) to compensate a victim specifically identified in the communication that constituted the discriminatory practice. Subsection 53(3) states that the Tribunal may order the person to pay compensation to the victim if the Tribunal finds that the person is engaging or has engaged in the discriminatory practice willfully or recklessly. [195] The Commission argued that the eight messages that were found to be violations of s. 14.1 also constituted violations of s. 13(1). I agreed and found that the same messages violated both provisions of the Act. I awarded the Complainant compensation for pain and suffering under s. 53(2)(e), as well as providing an award under s. 53(3) in recognition of the willful and reckless nature of the discriminatory conduct. [196] The Commission then argued that the Complainant was also entitled to special compensation under s. 54(1)(b) in respect of the same set of eight messages. According to the Commission, it was plain and obvious on the face of the eight messages in which the Respondent names the Complainant that he intended to do so. The Commission argued that an award of compensation in the amount of $20,000 would be appropriate given the clearly intentional nature of the Respondent's conduct. [197] The Respondent argued that providing compensation under both s. 54(1)(b) and s. 53(3) for the same messages would amount to double recovery. I agree. [198] In assessing the appropriateness of an order for special compensation in Kyburz, the Tribunal was careful not to include in its consideration, the messages that had been found to be violations of s. 14.1 of the Act. It may well be that this was done in order to avoid the potential for double recovery. [199] In the present case, however, it does not seem logical to dissect the series of eight messages in which the Respondent named and threatened the Complainant in order to fashion a remedy. The messages were part of a continuous pattern of conduct which violated s. 14.1 and s. 13(1) of the Act. They were clearly made in response to a series of actions that the Complainant took against the Respondent, including the filing of a human rights complaint. They were part of an ongoing battle between the two individuals and should be viewed as a whole. [200] I have provided compensation under s. 53(3) for the willful or reckless nature of the Respondent's discriminatory conduct in retaliating or threatening retaliation against the Complainant. It would not, in my view, be appropriate to provide further compensation under s. 54(1)(b) for the willful or reckless nature of the Respondent's conduct with respect to the same series of messages. This is because I do not think that the willful and reckless conduct of the Respondent in retaliating against the Complainant can be meaningfully distinguished from his willfulness or recklessness in naming the Complainant in the same series of messages. [201] In Chopra v. Canada (A.G.) 2006 FC 9 (appeal pending: A-52-06), the Federal Court stated that a corollary of the principle of restoring a victim to his/her rightful place is that the victim should not be overcompensated. Human rights awards should not result in unrealistic or windfall compensation. Such a result would undermine the integrity of the strong social justice purpose of the legislation (Chopra, supra, at para. 42). [202] In my view, providing an award of special compensation under s. 54(1)(b) for conduct relating to the same series of messages for which special compensation has already been provided under s. 53(3) would result in overcompensation of the Complainant. [203] For these reasons, I decline to order that the Respondent pay special compensation under s. 54(1)(b). (iii) Penalty [204] Subsection 54(1)(c) of the Act permits the Tribunal to order a respondent in a s. 13 complaint, where substantiated, to pay a penalty of up to $10,000. The Commission requested an Order that the Respondent be required to pay a $10,000 penalty in this case, arguing that the messages in this case are among the most vicious and intensely hateful messages that they have seen. Moreover, right up until a week before the hearing in this case began, the Respondent was still posting messages on the Internet. [205] The Respondent argues that Warman v. Warman 2005 CHRT 36 has cast some uncertainty on the constitutionality of s. 54(1)(c). Although counsel for the Respondent indicated that the Respondent was not challenging the constitutionality of the provision, she argued that the Tribunal should consider the constitutional uncertainty created by Warman v. Warman when deciding whether to order a penalty. [206] I reject this argument. A legislative provision is valid until such time as it is declared invalid. There is no such thing as constitutional uncertainty, in my view. The Tribunal cannot decline to apply the statute for fear that it may be invalid. It may only decline to apply the statute if it has been found to be invalid, on the basis of evidence and argument, and with proper notice to the Attorneys General. This has not been done in the present case. Moreover, I would note that in Schnell, this Tribunal found that the amendments to the Act which added the penalty and special compensation provisions to the remedies available under the Act, did not render s. 13 unconstitutional. [207] In deciding whether to order the Respondent to pay a penalty in this case, Parliament has directed, under s. 54(1.1), that the Tribunal take the following factors into account: The nature, circumstances, extent and gravity of the discriminatory practice; The willfulness or intent of the person who engaged in the discriminatory practice; Any prior discriminatory practices that the person has engaged in; and The person's ability to pay the penalty. [208] I find that the messages were vicious and dehumanizing. In my view, there is evidence on the basis of the wording of the messages alone, that the Respondent intended to expose members of the targeted groups to hatred and contempt and that he intended to convince people to think as he did. The Respondent called for the forced expulsion of non-Caucasian people, he threatened violent action against the targets of his hatred and enthusiastically supported a racial holy war in which all non-Caucasian people will be destroyed. He made use of exceedingly gruesome photographic imagery to draw in his readers and to communicate his messages of hate all the more powerfully. [209] The Respondent clearly communicated his messages in willful disregard of the likely consequences of his conduct. He used the Internet, a medium that has a pervasive and powerful presence in society, to engage in this conduct. There is, however, no evidence that the Respondent has engaged in any prior discriminatory practices. [210] The Respondent chose not to testify in the present case. Therefore, the Tribunal has no indication of his ability to pay other than a posting in which he states that he is reasonably well off, with a steady paying job, not much expenditures, all bills paid on time without much hassle. It may be that the Respondent is no longer reasonably well off. However, in the absence of any evidence from the Respondent, I find that there is no reason to reduce the penalty on the basis of an inability to pay it. [211] Taking all of these factors into account, I order the Respondent to pay a penalty in the amount of $6,000. Payment of the penalty shall be made by certified cheque or money order, payable to the Receiver General for Canada, and must be received by the Tribunal within 120 days of the Respondent being notified of this decision. Signed by Karen A. Jensen OTTAWA, Ontario April 13, 2006 PARTIES OF RECORD TRIBUNAL FILE: T1021/0205 STYLE OF CAUSE: Richard Warman v. Tomasz Winnicki DATE AND PLACE OF HEARING: August 8-9, 2005 December 12, 2005 Toronto, Ontario DECISION OF THE TRIBUNAL DATED: April 13, 2006 APPEARANCES: Richard Warman For himself Monette Maillet/ Ikram Warsame For the Canadian Human Rights Commission Tomasz Winnicki Assisted by Alex Beadie For himself

2006 CHRT 21

CHRT

Ennis v. Tobique First Nation

en

2006-04-27

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6822/index.do

2023-12-01

Ennis v. Tobique First Nation Collection Canadian Human Rights Tribunal Date 2006-04-27 Neutral citation 2006 CHRT 21 File number(s) T927/4704 Decision-maker(s) Sinclair, Grant, Q.C. Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DROITS DE LA PERSONNE JOHN ENNIS Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - TOBIQUE FIRST NATION Respondent RULING 2006 CHRT 21 2006/04/27 MEMBER: J. Grant Sinclair [1] The complainant, John Ennis, has filed a complaint with the Canadian Human Rights Commission dated July 11, 2002. He alleges that the respondent, Tobique First Nation, discriminated against him contrary to s. 5 of the Canadian Human Rights Act, by raising the Social Basic Rates by 5% without at the same time increasing the Disability Rates for members of the Tobique First Nation. [2] The respondent seeks an order from the Tribunal that s. 67 of the CHRA applies, so that the Tribunal lacks jurisdiction to hear the complaint. [3] The Social Basic Rates were increased following the Band Council Resolution dated May 23, 2000. The respondent argues that the payment of social assistance monies to band members is authorized by ss. 66 and 69 of the Indian Act. Further, the band must pay social assistance in accordance with the First Nations Social Development Manual for Malisset at Tobique. [4] Under s. 66(1) of the Indian Act, the Minister of Indian Affairs and Northern Development, with the consent of the Band Council, may authorize and direct the expenditure of revenue monies for any purpose that will promote the general progress and welfare of the band or any member thereof. [5] Section 66(2) authorizes the Minister to make expenditures out of revenue monies of the Band to assist sick, disabled, aged or destitute band members. [6] Section 69(1) provides that the Governor in Council may by order permit a Band to control, manage and expend in whole or in part its revenue monies. [7] In its motion, the respondent merely asserts that ss. 66 and 69 of the Indian Act constitute the legal authority for the respondent Band Council to dispense social assistance payments. [8] The respondent has not provided any evidence of the Band Council's consent or the Minister's authorization and direction as required by s. 66. [9] Section 66(2) authorizes the Minister, not the Band, to make expenditures out of band revenue monies. [10] The respondent did not provide any evidence of an order by the Governor in Council permitting the Band to deal with its revenue monies under s. 69. [11] There are a number of cases that have considered s. 67 of the CHRA. The first case is Desjarlais v. Piapot Band No. 75, [1989] 3 F.C. 605, 12 C.H.R.R. D/466 (C.A.). In this case, the Band dismissed its Band Administrator pursuant to a formal resolution of the Band Council. The resolution was a vote of non-confidence in the complainant, based on complaints relating to her age. She filed a complaint with the Commission alleging discrimination because of age. [12] Ultimately the case was heard by the Federal Court of Appeal, which rejected the respondent's argument that s. 67 of the CHRA applied. [13] In interpreting s. 67, the Court considered that the words . . . or any provisions made under or pursuant to that Act included any decision taken by a Band Council under a specific section of the Indian Act. But the Court concluded that a vote of non-confidence in an employee of the Band was not specifically authorized by the Indian Act. Section 67 did not apply. [14] The next case in this line of cases is Canada (Human Right Commission) v. Canada (DIAND), (1995), 25 C.H.R.R. D/386) (Prince). Section 115 of the Indian Act authorizes the Minister of Indian Affairs to make policies in regard to the funding of native children to attend residential schools. The Minister adopted a policy requiring native children to attend the school closest to their residence. The complainant's daughter attended a religious school away from home and was denied governmental assistance. [15] The Tribunal declined jurisdiction, reasoning that the Minister's funding decision was a decision under s. 115 of the Indian Act, so that s. 67 of the CHRA applied. The Federal Court, on review, agreed with the Tribunal. [16] In MacNutt v. Shubenacadie Indian Band Council, [1998] 2 F.C. 198; aff'd (2000), 37 C.H.R.R. D/466 (F.C.A.), a non-Indian spouse, who lived on the reserve with permission of the Band Council, was denied social assistance. The federal government had contracted with the Band to administer the social assistance program for band members. The guidelines for administering the agreement specifically provided that a non-Indian spouse who resides legally on a reserve is eligible for benefits. [17] The case went to the Federal Court, which decided that the Band Council's decision to deny benefits was not immunized by s. 67 of the CHRA. The Court pointed out that the Band Council's decision was not based on any specific provision of the Indian Act. [18] Further, s. 67 of the CHRA should not be taken as exempting all Band Council decisions, but only those decisions authorized by the Indian Act. [19] The respondent appealed to the Federal Court of Appeal, which dismissed the appeal. In its reasons confirming the lower court decision, the Court of Appeal reviewed the history of social assistance agreements between the Federal Government and First Nations. [20] The Court noted that in 1996, Parliament enacted the Canada Assistance Plan (CAP), which provided for cost sharing income maintenance programs between the Federal Government and the provinces. Under Part II of the CAP, the Minister for DIAND could enter into such cost-sharing agreements to extend provincial welfare payments to Indian residents on reserves. No province to date has signed a Part II agreement. [21] Apart from the CAP, Parliament has not enacted any legislation that expressly provides for social assistance to Indian residents on reserves. However, since 1964, Treasury Board has had in place a policy which authorizes DIAND to provide social assistance to First Nations. This is the legal basis for such social assistance programs, and it is found in Treasury Board Minute Number 627879, which was adopted on July 16, 1964. [22] In its reasons, the Court referenced a document entitled Background of the Development of the Social Assistance Program. (This document is also included in Appendix 1 of the respondent's First Nations Manual.) [23] According to this Background document, Treasury Board Minute Number 627879 authorized DIAND to adopt provincial and municipal welfare assistance rates and conditions in the administration of social assistance programs to First Nations. The Background document confirms that there is no specific legislation providing for social assistance programs for First Nations. [24] The respondent did not provide the Tribunal with any contract or agreement between DIAND and the Maliseet Nation at Tobique relating to the funding of its social assistance program. (Presumably such an agreement is in place). Instead, the respondent pointed to the Tobique First Nations Development Manual as authorizing the May 23, 2000 Band Council Resolution. My reading of the Manual does not show that it is the source of the Band Council's authority. Rather, the Manual provides the guidelines and procedures for the Band to administer the social development program. Even if it can be viewed as the basis for the May 23, 2000 Resolution, the Resolution is not a provision made under or pursuant to the Indian Act. [25] In Canada (Human Rights Commission) v. Gordon Band Council, [2001] 1 F.C. 124 (C.A.), the complainant, a status Indian who lived on the Gordon First Nation Band reserve with her non-Indian spouse, applied for rental housing on the reserve. Her request was denied by the Band Council. She filed a complaint with the Commission alleging discrimination on the basis of sex and family status. [26] The respondent raised s. 67 of the CHRA and the Tribunal concluded that it lacked jurisdiction to hear the case. The Tribunal reasoned that the Band Council's decision not to allot housing to the complainant was specifically authorized under s. 20 of the Indian Act. Section 20 provides that no Indian is lawfully in possession of land on a reserve unless, with the approval of the Minister, it has been allotted to him by the Band Council. [27] The Federal Court of Appeal agreed with the Tribunal. In its reasons, the Court said, as did the Tribunal, that s. 67 of the CHRA must be narrowly interpreted because it limits the scope of human rights legislation. In this regard, the Court relied on the Supreme Court of Canada's decision in Zurich Insurance Company v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321, at 339, where the Supreme Court accorded the Ontario's Human Rights Code quasi-constitutional status, such that any exceptions to the legislation had to be narrowly construed. [28] Substantively, the Court accepted that s. 20 confers not only the authority to make a housing allotment, but also, by necessary implication, the authority to refuse a housing allotment. [29] The most recent two cases on s. 67 are Bernard v. Waycobah Board of Education, (1999) 36 C.H.R.R. D/51 (C.H.R.T.) and Bressette v. Kettle and Stoney Point First Nation Band Council (No. 1) 2003 CHRT 41. In Bernard, the complainant, a member of the Waycobah First Nation, was employed as a school secretary. Her employment was terminated by the respondent because of her conduct on two or three occasions, which the Board believed was caused by a mental disability. She filed a complaint with the Commission alleging discrimination on the grounds of disability. [30] The respondent argued that s. 114 of the Indian Act, which authorizes the Minister to establish, maintain and operate schools for Indian children, authorized the Board of Education to make the decision it did. [31] The Tribunal rejected this argument. Although, said the Tribunal, s. 114(2) of the Indian Act does so authorize the Minister, there was no substantive connection between s. 114(2) of the Indian Act and the decision of the Waycobah Board of Education to terminate the complainant's employment. [32] Bressette v. Kettle and Stoney Point First Nation Band Council involved a status Indian and member of the Kettle and Stoney Point First Nation who applied for, but was not given, the position of Band family case worker. He filed a complaint with the Commission alleging that he was denied the job on the ground of family status. [33] The respondent argued that its decision was specifically authorized under ss. 69, 81 and 83 of the Indian Act. Sections 81 and 83 authorize Band Councils to make by-laws dealing with the subject matters specified in those sections. [34] In the final analysis however, the respondent relied on two regulations under the Indian Act, both of which, in general terms, provide for the management, control and expenditure of band revenue monies. [35] The Tribunal concluded that the decision of the respondent had both a staffing aspect and a financial aspect. But the predominant purpose of the Band Council's decision was to staff the family case worker position. There is no specific provision in the Indian Act relating to staffing positions for a band. Thus, s. 67 did not apply. [36] In my opinion, the same reasoning applies to this case. The Band Council Resolution of May 23, 2000 was a decision that involved the allocation of social assistance funds to band members living on the reserve. The expenditure of revenue monies was only consequential to this decision. Conclusion [37] The preceding analysis of the Indian Act, the Tribunal decisions, and the Court decisions establishes the following: Section 67 of the CHRA must be given a narrow interpretation, being an exception to human rights legislation; The predominant purpose of the Band Council Resolution of May 23, 2000 was the allocation of social assistance benefits to band members on the reserve; There is no specific provision in the Indian Act that authorizes a Band Council to make decisions relating to the allocation of social assistance to members of the band living on a reserve. The legal authority is the 1964 Treasury Board Minute Number 627879; Of the cases dealing with the application of s. 67 of the CHRA, only two have concluded that the decision of the Band Council was exempt from human rights review. In these two cases, the Band Council's decision was supported by a specific provision of the Indian Act; In the other cases, the respondent was unable to point to any specific section of the Indian Act to support the decision complained of; In none of the cases referred to where the Band Council's decision involved the expenditure of band monies, did the Tribunal or Court find that the impugned decision was justified by ss. 66 or 69 of the Indian Act; In fact, other than in Bressette, no respondents argued that these decisions were, or could be, supported under ss. 66 or 69; There is no evidence that the pre-conditions for the exercise of the power granted under ss. 66 and 69 have been satisfied; Sections 66 and 69 are general and non-specific, and should not prevail over human rights review, given the judicial directive that s. 67 of the CHRA must be narrowly interpreted. [38] For all these reasons, the respondent's motion is dismissed. Signed by J. Grant Sinclair OTTAWA, Ontario April 27, 2006 PARTIES OF RECORD TRIBUNAL FILE: T927/4704 STYLE OF CAUSE: John Ennis v. Tobique First Nation RULING OF THE TRIBUNAL DATED: April 27, 2006 APPEARANCES: John Ennis For himself Daniel Pagowski For the Canadian Human Rights Commission Harold Doherty For the Respondent

2006 CHRT 22

CHRT

Brown v. Canada (Royal Canadian Mounted Police)

en

2006-05-03

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6821/index.do

2023-12-01

Brown v. Canada (Royal Canadian Mounted Police) Collection Canadian Human Rights Tribunal Date 2006-05-03 Neutral citation 2006 CHRT 22 File number(s) T769/1903 Decision-maker(s) Groake, Paul Dr. Decision type Consent Order Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE JACQUELINE BROWN Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - ROYAL CANADIAN MOUNTED POLICE Respondent CONSENT ORDER 2006 CHRT 22 2006/05/03 MEMBER: Dr. Paul Groarke [1] Further to the Tribunal ruling of March 13, 2006, and the decision of Madam Justice Hansen dated December 13, 2005, the parties have agreed that the Respondent will pay the Complainant $5,000.00 (five thousand dollars) in expenses and costs. [2] Therefore, on the consent of all parties, the Tribunal hereby orders: The Respondent, the Royal Canadian Mounted Police, shall pay the Complainant, Jacqueline Brown, the sum of $5,000.00 (five thousand dollars) in full. This sum will be issued to Ms. Brown by cheque addressed to Mr. Charles Gordon, in trust for his client, by June 1, 2006. This will conclude the case. Signed by Dr. Paul Groarke OTTAWA, Ontario May 3, 2006 PARTIES OF RECORD TRIBUNAL FILE: T769/1903 STYLE OF CAUSE: Jacqueline Brown v. Royal Canadian Mounted Police ORDER OF THE TRIBUNAL DATED: May 3, 2006 APPEARANCES: Charles Gordon For the Complainant No one appearing For the Canadian Human Rights Commission Keitha J. Elvin-Jensen For the Respondent

2006 CHRT 23

CHRT

Warman v. Western Canada for Us

en

2006-05-08

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6817/index.do

2023-12-01

Warman v. Western Canada for Us Collection Canadian Human Rights Tribunal Date 2006-05-08 Neutral citation 2006 CHRT 23 File number(s) T1087/6805, T1088/6905 Decision-maker(s) Jensen, Karen A. Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE RICHARD WARMAN Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - GLENN BAHR - and - WESTERN CANADA FOR US Responden RULING 2006 CHRT 23 2006/05/08 MEMBER: Karen A Jensen [1] This is a ruling on a motion presented by Mr. Glenn Bahr for an adjournment of the hearing in this matter which is scheduled to begin on May 23, 2006. The complaint involves allegations that Mr. Bahr and Western Canada for Us communicated hate messages by means of the Internet, in violation of s. 13 of the Canadian Human Rights Act. [2] Mr. Bahr has also been charged under s. 319(2) of the Criminal Code, which is the provision dealing with the willful promotion of hatred. The preliminary hearing in this matter began in January 2006 and is due to resume in October 2006 in Edmonton, Alberta. A publication ban has been issued in those proceedings. [3] Mr. Bahr's representative argues that if the present inquiry is not adjourned pending the resolution of the criminal proceedings against him, his right to a fair criminal trial will be infringed. The publicity surrounding the Tribunal hearings will subvert the purpose of the publication ban in the criminal proceedings which is to ensure that potential jurors will not be biased by what they have read about the case in the media. Also, it is argued that the testimony that Mr. Bahr might give during the hearing into the present complaint could be used against him in the criminal trial. [4] In addition, it is argued that Mr. Bahr's right to a fair hearing in the present proceedings will be infringed. Mr. Bahr initially stated his intention to testify on his own behalf in his Statement of Particulars. He has subsequently amended that Statement to indicate that, in order to preserve his right to remain silent, he has no choice but to refuse to testify during the human rights proceedings. As a result, he states that he will be unable to properly defend himself against the s. 13 complaint. This, he argues, is a clear breach of the rules of natural justice. [5] The Complainant, Mr. Richard Warman, argues that the Tribunal has the power, under s. 52(1) of the Act to issue a confidentiality order if needed to ensure that the goals of the publication ban issued in the criminal proceedings are not undermined. Moreover, the Complainant argues that Mr. Bahr is not required to testify or to incriminate himself during the hearing into the s. 13 complaint. He is free to choose the manner in which he will participate in the hearing and the fairness of the process will not be affected by this choice. According to the Complainant, an adjournment of the present proceedings would result in an indefinite delay of the hearing. This would be contrary to the goal of providing for the most expeditious and informal resolution of complaints as the requirements of fairness and natural justice will allow. [6] The Canadian Human Rights Commission echoes the submissions of the Complainant and adds that Mr. Bahr has failed to show that the safeguards and protections that may be utilized to ensure that his right to a fair criminal trial and a fair hearing before this Tribunal will be insufficient or ineffective. [7] In Baltruweit v. CSIS, this Tribunal stated that it does not have the authority to stay its own proceedings (Baltruweit v. CSIS 2004 CHRT 14, at para 12). However, as master of its own process, the Tribunal has the discretionary power to grant an adjournment. In exercising its discretion to grant an adjournment, the Tribunal must determine whether an adjournment is necessary in order to respect the principles of natural justice (Baltruweit, supra, at para. 17). In other words, the question is whether it would be fair to the parties to proceed with the hearing as scheduled. [8] It is by no means unusual for the same factual circumstances to give rise to both administrative proceedings before a tribunal such as this one, as well as criminal or quasi-criminal proceedings involving the same parties and similar factual and legal issues. (See, for example: Seth v. Canada (Minister of Employment and Immigration) [1993] 3 F.C. 348 (F.C.A.); Spagucci's Ltd. v. Alberta (Gaming Commission) (1997), 55 Alta. L.R. (3d) 173 (Alta. Q.B.); and Willock v. British Columbia (Superintendant of Motor Vehicles) 2000 BCSC 772 (B.S.S.C.)). Frequently, in situations like this, one of the parties will express the concern, as Mr. Bahr has done in the present case, that the protection against self-incrimination and the fairness of the proceedings will be violated by allowing both proceedings to take place at the same time. [9] The constitutionally enshrined protection against self-incrimination is based on the principle that the state is not permitted to conscript individuals against themselves. Rather, the state is subject to a positive obligation to establish a case against the accused through other sources or only with the informed and voluntary cooperation of the accused (Phillips et al v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy) ([1995] 2 S.C.R. 97 at para. 80). Therefore, when an accused person is compelled to testify outside of the criminal court, the extent to which these principles may be jeopardized by that testimony must be ascertained. [10] However, the courts have clearly stated that the fact that an individual is involved in contemporaneous civil and criminal proceedings does not necessarily compromise the fairness of either proceeding or the right to protection from self-incrimination (Phillips et al, supra, at para. 165). For that reason, it is not sufficient for the party requesting an adjournment of the civil proceedings to simply allege that the concurrency of the proceedings will violate the right to a fair hearing and the protection against self-incrimination. Rather, the onus is on the party requesting the adjournment to demonstrate the following: (1) the civil proceedings will compel the party to break his or her silence and, (2) the compulsion to testify will result in a specific prejudice, the degree of which renders the circumstances so extraordinary or exceptional that an adjournment is warranted (Nash v. Ontario (1995), 27 O.R. (3d) 1 (O.C.A.); C.B. v. Caughell (1995), 22 O.R. (3d) 741 (On. Div. Ct.); Spagucci, supra, at para. 10; Seth v. Canada (Minister of Employment and Immigration), supra, at paragraphs 17 and 18). [11] I see no reason why the test set out above should not be followed in the context of proceedings before this Tribunal. I. Will the Tribunal hearing compel Mr. Bahr to break his silence? [12] Mr. Bahr has stated that he has no choice but to refuse to testify at the Tribunal hearings in order to preserve his right to silence. However, the rights to silence and the protection against self-incrimination are threatened only when one is compelled or coerced to disclose incriminating information. These rights are not violated by voluntary disclosure: (R. v. Van Haarlem (1991), 135 N.R. 379 (B.C.C.A.), at p. 386: aff'd [1992] 1 S.C.R. 982.) Is one compelled or coerced to testify at an administrative proceeding when it appears to be the only way to successfully defend oneself? [13] The courts have drawn a distinction between situations where an individual believes that it is strategically necessary for him or her to testify and where an individual is compelled by law to testify. Generally speaking, the courts have held that where one has a choice about electing to come forward to provide information at an administrative hearing, and one does so in order to present information necessary to establish one's case, this does not amount to being compelled or coerced to give information (see, e.g.: Spagucci's Ltd, supra, at para. 8; Willock v. British Columbia (Superintendant of Motor Vehicles) supra, at para. 14; White v. Nova Scotia (Registrar of Motor Vehicles) (1996) 20 M.V.R. (3d) 192 (N.S.S.C.) at para. 35; contra: Williams v. Superintendent of Insurance (N.S.) (1993), 125 N.S.R. (2d) 323)). Thus, the weight of judicial authority suggests that when an individual is not required by law to testify at an administrative proceeding, but rather is able to make an informed choice about whether to testify, the rights to silence and to protection against self-incrimination are not violated. [14] In the present case, although he may not perceive that he has a choice about whether to testify at the Tribunal hearing, Mr. Bahr does, in fact, have a choice; there is no legal requirement that Mr. Bahr testify. Moreover, he has the benefit of legal counsel representing him during the criminal proceedings and someone assisting him during the pre-hearing matters in the Tribunal proceedings. Mr. Bahr is, therefore, in a position to make an informed choice regarding his participation in the Tribunal proceedings. As a result, his right to silence and to protection from self-incrimination will not be violated by proceeding with the Tribunal's inquiry into the complaint. II. Has Mr. Bahr discharged the burden of proving that there are extraordinary circumstances in this case that warrant the granting of an adjournment? [15] In Canada (Minister of Employment and Immigration) v. Lundgren [1993] 1 F.C. 187 (T.D.) at para. 14, Mr. Justice Dubé stated: I know of no general principle in Canada that the existence of civil and criminal proceedings in court at the same time involving the same persons and the same facts is automatically a valid reason justifying the adjournment of the civil proceedings. Rather, he stated, it is only under extraordinary circumstances, in which the civil proceedings might cause some damage to the accused's defence to the criminal charge, that adjourning the civil action would be justified. [16] The burden of proof is on the party applying for the adjournment to conclusively demonstrate the existence of such harm: a mere allegation will not suffice. Moreover, even the potential disclosure through the civil proceedings of the nature of the accused's defence or of self-incriminating evidence does not necessarily constitute extraordinary circumstances that warrant the adjournment of civil proceedings (Nash, Falloncrest Financial Corporation et al v. Ontario (1995), 27 O.R. (3d) 1 (O.C.A.). [17] For the following reasons, I find that Mr. Bahr has not succeeded in establishing that there are extraordinary circumstances in the present case that warrant adjourning the Tribunal's proceedings. [18] As I have previously stated, Mr. Bahr has a choice as to whether to testify during the Tribunal hearing. Should he choose to testify, there are a number of protections at law that may well be available to him during the criminal proceedings to ensure that his rights to a fair trial and to protection against self-incrimination will be protected. If Mr. Bahr finds himself in a situation where, having decided to testify at the Tribunal hearing, he is asked a question that has the potential to incriminate him, he may well be able to claim the protection of s. 13 of the Charter and s. 5(2) of the Canada Evidence Act in the criminal proceedings. [19] Section 5 of the Canada Evidence Act allows any witness to object to a question if he or she believes that the answer will tend to incriminate him or her. The witness will still be required to answer the question, but in turn for the giving of potentially incriminating evidence, the statute prohibits the use of the answers in any other proceedings against the witness (R. v. Noël 2002 SCC 67, at para. 25). [20] Section 13 of the Canadian Charter of Rights and Freedoms also protects a witness from the use of incriminating testimony in any other proceedings against the witness. Under s. 13, unlike under s. 5 of the Canada Evidence Act, the witness need not object at the time that the original evidence is given. The protection is automatically afforded to an accused regardless of whether the evidence was - or was believed to be - incriminating at the time it was given (R. v. Noël, supra, at para. 32). [21] The protection offered by s. 13 of the Charter and s. 5(2) of the Canada Evidence Act is available to a witness whether he or she chooses to testify or is compelled to testify (R. v. Noël, supra, at para. 25). It is, of course, a matter for the criminal court to decide whether testimony given during the Tribunal proceedings should be excluded on the basis of s. 13 of the Charter or s. 5(2) of the Canada Evidence Act. Mr. Bahr has not shown why these protections will be insufficient or unsatisfactory. [22] Mr. Bahr has also argued that proceeding with the Tribunal Inquiry will subvert the publication ban that has been ordered in the criminal proceedings since the Tribunal proceedings will engender the publicity that the publication ban is designed to eliminate. Given the similarity in the nature of the alleged offenses under the Criminal Code and the Canadian Human Rights Act, it is argued that the publicity surrounding the Tribunal proceedings may well threaten the impartiality of potential jurors in his criminal trial. This, in turn, will jeopardize Mr. Bahr's right to a fair criminal trial. [23] There are a number of responses to this argument. First of all, Mr. Bahr's arguments at this point are speculative. It is unclear whether Mr. Bahr will testify at the Tribunal hearing or whether he will be electing to be heard by judge and jury at his criminal trial. Nor do we know what the nature of the publicity surrounding the Tribunal proceedings will be. It is precisely this sort of uncertainty that was found by the minority of the Supreme Court in Phillips to be inadequate to justify a conclusion that the fair trial rights of all of the accused in that case were in jeopardy. [24] Secondly, the Canadian Human Rights Act provides the authority to order a publication ban or confidentiality orders in the appropriate circumstances. Section 52(1)(c) of the Act stipulates that the Tribunal may take any measures and make any order necessary to ensure the confidentiality of the inquiry if the Tribunal is satisfied that there is a real and substantial risk that the disclosure of matters will cause undue hardship to the persons involved and that this outweighs the societal interest in a public hearing. Section 52(1)(d) provides for confidentiality orders where the life, liberty or security of a person will be endangered. The Tribunal has ordered a publication ban pursuant to s. 52 of the Act under the appropriate circumstances: Day v. DND and M. Hortie 2003 CHRT 12. [25] Mr. Bahr, through his representative, has stated that he would strongly oppose a publication ban in the present case. It is argued that the Canadian public should not be denied access to information regarding the potential restriction of freedom of speech through section 13(1) of the Act. Although it is not entirely clear from the Commission's submissions, it would appear that the Commission is suggesting that a publication ban should be ordered in this case. This point was not clearly argued. Therefore, I leave it to the parties to determine whether to request an order under s. 52(1) of the Act. It is sufficient for the purposes of this Ruling to note that, should it be necessary to do so, this Tribunal has the authority to issue a confidentiality order which could include a publication ban. [26] In Seth, Mr. Justice Décary stated that extraordinary or exceptional circumstances justifying a stay of the civil proceedings would include situations where it was clear that the sole aim and purpose of the civil proceedings was to obtain evidence to support a charge or to assist the criminal prosecution of the witness. Where the proceedings are so devoid of any legitimate public purpose, and so deliberately designed to assist the prosecution of the witness that to allow them to continue would constitute an injustice, then an adjournment would be clearly justified (Seth, supra, at para. 18). [27] That is clearly not the case in the present proceedings. Section 2 of the Canadian Human Rights Act establishes the overriding public interest in the elimination of discrimination. Pursuant to s. 48.9 of the Act, the Tribunal is charged with the mandate of inquiring into complaints of discrimination as expeditiously and informally as the requirements of natural justice and the rules of procedure will allow. The purpose of the hearing, which is due to commence on May 23, 2006, is to fulfill the Tribunal's legislative mandate. It is not designed to assist in the prosecution of Mr. Bahr. [28] Moreover, this is not a case like Pearson v. R [1999] F.C.J. No. 1298 (Q.L.), wherein the Federal Court upheld a decision by a prothonotary to stay a civil matter where there were pending criminal proceedings. The plaintiff in that case was the accused in the criminal trial. The civil action involved a claim for damages by the Plaintiff for the alleged deprivation by the Crown of the Plaintiff's right to a fair trial in the criminal matter. The Crown requested a stay of the civil proceedings arguing that the question of whether the trial was fair was first raised in the criminal court and therefore, should first be determined there. The Federal Court agreed and stated that the civil action was essentially the reciprocal of the plaintiff's defence in the criminal prosecution. [29] That is not the case in the present matter. The human rights complaint is clearly not an action against the Crown, nor is it the reciprocal of Mr. Bahr's defence in the criminal matter. Moreover, despite the fact that the Tribunal and criminal proceedings may involve similar factual issues, there is no legal connection between the two proceedings. In the criminal proceedings the Crown is required to prove, beyond a reasonable doubt, that Mr. Bahr willfully and publicly promoted hatred against an identifiable group. In the Tribunal proceedings, it must be established, on a balance of probabilities, that Mr. Bahr and Western Canada for Us exposed a group that is identifiable on the basis of a prohibited ground of discrimination, to hatred or contempt. These are very different legal questions that must be determined on the basis of different burdens of proof. Moreover, the proof of one does not necessarily lead to the proof of the other. For example, an acquittal in the criminal proceedings would not necessarily lead to a successful defense against the s. 13 complaint. Similarly, a finding that the s. 13 complaint had been made out would not necessarily lead to a guilty verdict in the criminal proceedings. Finally, other than Mr. Bahr, the parties to the two proceedings are different. For these reasons I am of the view that the Pearson case is not applicable in the present circumstances. [30] Mr. Bahr has expressed concern that the lead police investigator in the criminal matter will be present and will be testifying on behalf of the Commission and the Complainant at the Tribunal hearing. This individual's presence at the hearing may serve to strengthen the Crown's case against Mr. Bahr. This, it is implied, constitutes an exceptional circumstance that warrants the adjournment of the proceedings. [31] I cannot agree. As I have already indicated, the Tribunal has the power to ensure that its proceedings are confidential in the appropriate circumstances. The Tribunal may also order that witnesses be excluded during the hearing. Therefore, Mr. Bahr's concerns regarding the presence of witnesses who might hear his testimony may be alleviated by the appropriate exercise of the Tribunal's powers under the Act. [32] Finally, it must be noted that Mr. Bahr's request is essentially a request for an indefinite adjournment of the Tribunal's proceedings since it is unknown when the criminal matter will be finally determined. Furthermore, as I have indicated, the result in the criminal trial will not necessarily be determinative of the result in the Tribunal proceedings. Therefore, after what might be a lengthy delay to finally dispose of the criminal matter, the parties would then be faced with the prospect of presenting and defending against a case potentially many years after the alleged violation of the Act took place. Not only would this frustrate the goal of providing an expeditious resolution of the complaint, it would not be in the interests of any of the parties to delay the resolution of this matter for an indefinite period of time. III. Conclusion: The Principles of Natural Justice Will Not be violated by Proceeding with the Hearing as Scheduled. [33] For the following reasons, I find that the principles of natural justice will not be violated by proceeding with the Tribunal hearing as scheduled: Mr. Bahr is able to make an informed choice as to whether to testify during the Tribunal hearing into the s. 13 complaint against him. Therefore, his rights to silence and to protection against self-incrimination will not be violated by proceeding with the Tribunal hearing. If he chooses to testify, he may be able to claim the protection of s. 13 of the Charter and s. 5(2) of the Canada Evidence Act in the subsequent criminal proceedings. Any of the parties may apply to the Tribunal for an order under s. 52 of the Act to ensure the confidentiality of the hearing. A request may also be made that witnesses be excluded from the hearing. The purpose of the Tribunal hearing is to provide an expeditious resolution of the s. 13 complaint against Mr. Bahr and Western Canada for Us. There is no indication that the purpose of the present proceedings is to obtain information from Mr. Bahr to secure a conviction in the criminal proceedings. The proceedings are not connected or linked in any way such that it makes sense to adjourn one pending the resolution of the other. Mr. Bahr has failed to establish that there are any circumstances in this case that are so extraordinary that an adjournment of the proceedings is necessary. [34] Therefore, Mr. Bahr's request for an adjournment of the Tribunal's inquiry into the s. 13 complaint against Mr. Bahr and Western Canada for Us is denied. signed by Karen A. Jensen OTTAWA Ontario May 8, 2006 PARTIES OF RECORD TRIBUNAL FILE: T1087/6805 and T1088/6905 STYLE OF CAUSE: Richard Warman v. Western Canada for Us and Glenn Bahr RULING OF THE TRIBUNAL DATED: May 8, 2006 APPEARANCES: Richard Warman For himself Giacomo Vigna / Ikram Warsame For the Canadian Human Rights Commission Paul Fromm Western Canada for Us For the Respondent, Glenn Bahr No representations made

2006 CHRT 24

CHRT

Warman v. Western Canada for Us

en

2006-05-15

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6815/index.do

2023-12-01

Warman v. Western Canada for Us Collection Canadian Human Rights Tribunal Date 2006-05-15 Neutral citation 2006 CHRT 24 File number(s) T1087/6805, T1088/6905 Decision-maker(s) Jensen, Karen A. Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE RICHARD WARMAN Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - GLENN BAHR - and - WESTERN CANADA FOR US Respondents RULING 2006 CHRT 24 2006/05/15 MEMBER: Karen A. Jensen [1] This is a ruling on a motion involving two complaints that are scheduled to be heard together on May 23, 2006. The Respondents, Mr. Glenn Bahr and Western Canada for Us (WCFU), have requested that the complaint against Western Canada for Us (WCFU) be dismissed. The complaints involve allegations that WCFU and Glenn Bahr communicated hate messages by means of the Internet contrary to s. 13 of the Canadian Human Rights Act. [2] Through his agent, Mr. Bahr argued that WCFU is neither a living human being nor a corporation. It is an Internet website. He further argued that, according to the Canadian Human Rights Act and the Interpretation Act, a respondent in proceedings involving section 13 of the Act must be either a living human being or a corporation. In support of his motion, Mr. Bahr's agent produced the Investigation Report of the Canadian Human Rights Commission which suggests that the Commission investigator thought that WCFU was the website found at the following Internet address: www.westerncanadaforus.com. [3] The Complainant, Mr. Richard Warman, argued that the erroneous identification by the Commission investigator of the Respondent WCFU as a website is of no significance at this stage in the process. The proper recourse for disputes about the Commission's process is an application for judicial review before the Federal Court. [4] The Complainant also argued that this Tribunal's Ruling in Warman v. Guille and Canadian Heritage Alliance 2006 CHRT 12 is applicable in the present case. In Warman v. Guille and Canadian Heritage Alliance, I held that the appropriate time to resolve the question of whether the Canadian Heritage Alliance was a group of persons acting in concert to communicate was during the hearing on the merits of the complaint when the Tribunal would have the benefit of a full evidentiary record. [5] The Commission argued that complaints involving s. 13 of the Act have been substantiated against unincorporated groups of persons as long as some or all of certain indicia are present identifying them as a group. [6] The style of cause on the complaint form and the letter of referral from the Canadian Human Rights Commission indicate that the complaints are against Mr. Glenn Bahr and Western Canada for Us, not www.westerncanadaforus.com. Whether Western Canada for Us is a group of persons acting in concert to communicate messages over the Internet within the meaning of s. 13(1) of the Act has yet to be determined. For the reasons that I stated in my ruling in Warman v. Guille, supra, this is a determination that must be made on the basis of adequate evidence. The evidence on the record at this time is inadequate to make such a determination. [7] Although the Commission investigator stated that Western Canada for Us was a website, in his Statement of Particulars, Mr. Bahr identifies Western Canada for Us as an Alberta-based group dedicated to immigration reform and freedom of speech. According to Mr. Bahr's Statement of Particulars, Western Canada for Us organized meetings and protests. Thus, there would appear to be different views about the identity of Western Canada for Us and the nature of the activities in which it was involved. The appropriate time to resolve these differences is during the hearing when there will be an opportunity for sworn testimony and cross-examination. [8] Therefore, Mr. Bahr's request that the complaint against Western Canada for Us be dismissed is denied without prejudice to his right to renew the request at the hearing on the merits of the complaint. signed by Karen A. Jensen OTTAWA, Ontario May 15, 2006 PARTIES OF RECORD TRIBUNAL FILE: T1087/6805 and T1088/6905 STYLE OF CAUSE: Richard Warman v. Western Canada for Us and Glenn Bahr RULING OF THE TRIBUNAL DATED: May 15, 2006 APPEARANCES: Richard Warman For himself Giacomo Vigna / Ikram Warsame For the Canadian Human Rights Commission Paul Fromm Western Canada for Us For the Respondent, Glenn Bahr No representations made

2006 CHRT 25

CHRT

Audet v. Canadian National Railway

en

2006-05-16

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6813/index.do

2023-12-01

Audet v. Canadian National Railway Collection Canadian Human Rights Tribunal Date 2006-05-16 Neutral citation 2006 CHRT 25 File number(s) T1030/1105 Decision-maker(s) Hadjis, Athanasios Decision type Decision Decision Content Canadian Human Rights Tribunal Tribunal Canadien Des Droits De La Personne JEAN-RAYMOND AUDET Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADIAN NATIONAL RAILWAY Respondent DECISION 2006 CHRT 25 2006/05/16 MEMBER: Athanasios D. Hadjis I. WHAT FACTS GAVE RISE TO MR. AUDET'S COMPLAINT? A. Mr. Audet's work history at CN B. Mr. Audet's seizure of September 10, 2002 C. CN removes Mr. Audet from service D. Mr. Audet's dealings with CN following his removal from service E. CN invites Mr. Audet to be tested for the position of Intermodal Dispatch Coordinator - December 2003 F. CN offers Mr. Audet the position of Train Movement Clerk - July 2004 G. CN invites Mr. Audet to undergo clerical testing - May 2005 H. CN offers Mr. Audet the Rule 42 Foreman position - October 13, 2005 II. WHAT MUST BE PROVEN TO ESTABLISH DISCRIMINATION IN THIS CASE? A. The Prima facie case B. CN's justification C. Application of the Meoirin test (i) Was the standard adopted by CN for a purpose rationally connected to the performance of the job? (ii) Did CN adopt the standard in the good faith belief that it was necessary for the fulfillment of the purpose? (iii) Has it been demonstrated that the accommodation of Mr. Audet is impossible without imposing undue hardship on CN? a) Was Mr. Audet individually assessed? b) Did the employer consider and reasonably reject all viable forms of accommodation? c) Would accommodating Mr. Audet have imposed undue hardship on CN? d) Did Mr. Audet hinder CN's accommodation efforts? 1. Mr. Audet's reaction to the July 2004 TMC job offer 2. The UTU's alleged failure to facilitate the accommodation 3. Mr. Audet's reaction to the offer of the Rule 42 Foreman position III. FINDING OF DISCRIMINATION IV. WHAT REMEDIES DOES MR. AUDET SEEK? A. An order that CN review its accommodation policy B. Return to active service C. Compensation for lost wages D. Compensation for pain and suffering - s. 53(2)(3) of the Act E. Special compensation - s. 53(3) of the Act F. Costs G. Interest H. Retention of jurisdiction by the Tribunal [1] The complainant, Jean-Raymond Audet, alleges that his employer, the Canadian National Railway Company (CN), refused to continue to employ him and did not accommodate him after he had an epileptic seizure on September 10, 2002. He contends that CN thereby discriminated against him on the basis of his disability, in breach of s. 7 of the Canadian Human Rights Act. [2] Both Mr. Audet and CN participated at the hearing and were represented by legal counsel. The Canadian Human Rights Commission did not participate. Prior to the start of the hearing, the Commission reached an agreement with the other parties regarding the policy issues engaged by this case in relation to the application of the Railway Association of Canada's Medical Guidelines. The details of the agreement were not disclosed to the Tribunal. [3] For the reasons set out below, I have determined that CN discriminated against Mr. Audet by effectively refusing to continue to employ him, on the basis of his disability, without a valid justification under the Act, and that Mr. Audet's complaint has therefore been substantiated. I. WHAT FACTS GAVE RISE TO MR. AUDET'S COMPLAINT? A. Mr. Audet's work history at CN [4] Mr. Audet is 47 years old and resides in Sudbury. He became an employee of CN in May of 1988. By July of 1989, Mr. Audet was working as a brakeman, based out of CN's terminal in Capreol, just outside of Sudbury. A typical three-person train crew is comprised of the locomotive engineer, the conductor, and the brakeman, who assists the conductor. The brakeman's duties include moving tracks to switch out rail cars from a train and assisting in the marshalling of the various rail cars. [5] In August of 1989, Mr. Audet suffered a single convulsive seizure while working. He was diagnosed with complex-partial epilepsy, also known as Temporal-Lobe epilepsy. As a consequence of that episode, Mr. Audet has been on anti-seizure medication ever since. [6] Following the seizure, CN removed Mr. Audet from his position. He received short term disability benefits and employment insurance benefits while off work. In 1992, he was returned to work by CN in the position of yard helper, at CN's MacMillan Yard terminal in Toronto. [7] In 1995, Mr. Audet suffered an injury to his back while at work. He received disability benefits and on occasion was assigned light duty work. As a result of his injury, the Ontario Workplace Safety and Insurance Board (WSIB) imposed several work-related restrictions, including a requirement that he not work for prolonged periods of time, that he limit his lifting of heavy objects, and that he avoid repetitive back motions. [8] In 1997, CN's Chief Medical Officer identified certain restrictions relating to Mr. Audet's epilepsy that had to be respected in order for him to regain employment as a brakeman on the main rail line. The Chief Medical Officer observed that Mr. Audet had been seizure-free for more than five years and concluded that his chance of a new seizure was quite remote. The restrictions provided that Mr. Audet was not to work alone, and was to always remain in radio or visual contact with a team partner. His team was to be kept informed of the remote possibility of his sudden impairment. All applicable rules regarding rest periods were to be fully respected. No overtime work would be permitted for Mr. Audet, unless it was in an emergency situation. B. Mr. Audet's seizure of September 10, 2002 [9] With the issuance of the Chief Medical Officer's letter setting out Mr. Audet's restrictions, he was able to return to work as a brakeman based out of Capreol, in 1998. On certain trains, where crews were only comprised of two persons, he would work as the conductor, a job for which he had been qualified in 1992. [10] On account of his relatively low rank on the seniority list for CN's Capreol-based brakemen and conductors, Mr. Audet had been placed on the spare board. As a result, he would be called in to fill vacancies created on the occasions when a regular employee was absent or when none of the regular employees had opted to work on a given shift. Thus, if CN required the services of a brakeman or conductor on a run, Mr. Audet and the other spare board employees would be telephoned on a rotational basis and invited to take the available run. Mr. Audet was remunerated based on the number of hours worked or miles travelled, depending on the circumstances. [11] Mr. Audet claims that there was an overall shortage of employees at Capreol in 2002, as a result of which he was called in to work more hours than ever before. He contends that the workload took its toll on him and that by the end of the summer, he was feeling quite tired. [12] On the morning of September 10, 2002, he returned to Capreol after helping bring in a train overnight from Hornepayne, Ontario. He got into his car at the end of his shift and was going home to rest. He had booked himself a 24-hour rest period. On the way home, he felt what he describes as an aura coming over him, and he realized immediately that a seizure was imminent. He pulled his car over. He had a seizure but does not recall it. He remembers waking up in an ambulance. He was taken to the hospital but was released several hours later. [13] Mr. Audet went home. He did not notify CN of the incident. During the evening of the following day, September 11, 2002, he received a call from CN's dispatcher calling him in to work on an available run, as was the normal practice. Mr. Audet asked if he could be excused from coming in, claiming he did not feel well. The dispatcher replied that without a note from a physician, he would not be considered to be on sick leave. Mr. Audet testified that since he was not in possession of such a note, he felt that he had no choice but to report for work as requested. He completed his train run that night and returned to Capreol the following day, September 12, 2002. [14] Mr. Audet's supervisor, Gerald Nadon, who held the position of trainmaster, confirmed in his testimony that CN views negatively any last-minute requests for sick leave that are made to a dispatcher by employees when they get their call to come in to work. The employee's trainmaster usually conducts follow-up inquiries to learn why the employee has booked sick. Employees are expected to inform CN of their unavailability due to illness as soon as possible. Tardy notifications cause logistic difficulties for CN, which in turn result in train delays. [15] While Mr. Audet was out on his overnight run, Mr. Nadon heard about his seizure from some of the other CN employees at Capreol. Mr. Nadon invited Mr. Audet into his office as soon as he returned to Capreol. When asked by Mr. Nadon directly if the rumour was true, Mr. Audet confirmed that he had indeed experienced a seizure. Mr. Audet testified at the hearing that he had intended to tell CN about his seizure, but only after having first taken the opportunity to be examined by his own family physician and his neurologist. C. CN removes Mr. Audet from service [16] Mr. Nadon informed CN's department of Occupational Health Services (OHS) about the seizure. OHS's function within CN is to develop and monitor all policies with respect to health and fitness for duty. The medical component of OHS's functions has been assigned by CN to an outside firm, Medisys. The information provided by Mr. Nadon was reviewed by the Medisys team of health professionals, who in turn sent a message to CN's Crew Management Office directing that Mr. Audet be pulled out of service immediately and not be assigned to work on any more runs, as he was considered unfit for work in his position. [17] Medisys' determination was based on the Railway Association of Canada's Medical Guidelines for the Employment of Individuals with Epilepsy or Other Epileptic Seizures in a Safety Critical Position in the Canadian Railway Industry (the RAC Guidelines). According to Transport Canada's Railway Rules Governing Safety Critical Positions, which were developed pursuant to s. 20 of the Railway Safety Act, R.S., 1985, c. 32 (4th Supp.), safety critical positions are defined as any positions directly engaged in the operation of trains in main track or yard service, or engaged in rail traffic control. CN considers brakemen and conductors as falling into this category. [18] The Railway Medical Rules for Positions Critical to Safe Railway Operations (the Railway Medical Rules) also developed by Transport Canada pursuant to s. 20 of the Railway Safety Act, require that persons working in safety critical positions be assessed by their employers in regard to their medical fitness for duty. If a railway company's Chief Medical Officer, in making an individual assessment of a person's medical fitness for duty, is of the opinion that there exists a threat to safe railway operations, that person may be restricted from occupying a safety critical position, or be otherwise restricted from working or performing certain tasks in a safety critical position (Rule 6.1). [19] The RAC Guidelines reaffirm the principle espoused in Transport Canada's Railway Medical Rules that employees working in safety critical positions must be physically and mentally fit. They underscore the fact that impaired performance due to a medical condition could result in an incident affecting the health and safety of employees, the public, property or the environment. Section 4 of the RAC Guidelines sets out a series of criteria to be considered in assessing medical fitness for duty. In the case of someone diagnosed with epilepsy who has been treated with antiepileptic drugs, the criteria specify that the person must not have experienced any seizures for a period of five years. Also, the person must not exhibit any epileptiform activity in a series of electroencephalograms (EEGs) performed over the same period. [20] Upon learning of Mr. Audet's September 2002 seizure, and based on these criteria, CN immediately decided that his removal from service in any safety critical position would remain in effect for the five year evaluation period. He was effectively removed from his position of brakeman/conductor for a period of five years. [21] As of October 2005, when the hearing before the Tribunal into Mr. Audet's human rights complaint took place, he had yet to be called back into service by CN, be it in a safety critical or non-safety critical position. He was in receipt of disability benefits until the end of June 2005. CN has not formally dismissed Mr. Audet. [22] Mr. Audet experienced three more seizures after the seizure of September 10, 2002, (one each in June, September, and November 2003). After the last of these seizures, his medication was changed and he has not had any seizures since. D. Mr. Audet's dealings with CN following his removal from service [23] Mr. Audet testified that following his removal from service, he was frequently in contact with Medisys. He signed a form authorizing Medisys to view his hospital records. On November 1, 2002, his neurologist completed a form issued by the Railway Association of Canada, relating to the evaluation of epilepsy or isolated epileptic seizures in individuals occupying safety critical positions. The form is essentially a medical report. Mr. Audet passed the form on to Medisys. [24] About one week after being released from service, Mr. Audet contacted his union representative, Glenn King, to report the seizure incident and to look into how he could be accommodated in his employment. Mr. Audet testified that after being removed from service, he would still visit the Capreol facility on a regular basis, asking CN management personnel there if they could accommodate him in another position. One of the persons he spoke to was Brian Gillies, a trainmaster at the Capreol facility. Mr. Audet claims that Mr. Gillies advised him to contact CN's management offices in Toronto to inquire about the possibilities for accommodation. Mr. Audet followed his suggestion and telephoned the Toronto office many times between 2002 and 2005. He was always told that someone would look into his situation and get back to him to discuss his case. No one ever did. [25] After September 12, 2002, Mr. Nadon never spoke to Mr. Audet again about his employment or any accommodation. According to Mr. Nadon, it was not his responsibility to engage in such discussions. That was the task of CN's human resources department and CN's risk management office. [26] Mr Audet was frequently in touch by telephone with June Sheppard, a registered nurse working for Medisys, who was handling Mr. Audet's file. Mr. Audet kept her up to date with respect to his medical condition, including the three seizures that he experienced in 2003. He testified that he frequently asked her what could be done about accommodating him. She always said that she would look into the matter, but he was never given any information about the outcome of her inquiries. [27] As the months passed, Mr. Audet claims that he did not get any response from CN, so on August 21, 2003, he filed the present human rights complaint alleging that he had not been accommodated. E. CN invites Mr. Audet to be tested for the position of Intermodal Dispatch Coordinator - December 2003 [28] According to Mr. Audet, it was only in December 2003, almost four months after filing his human rights complaint, that he first received any word from CN regarding accommodation. Richard Theberge, who was CN's Risk Management Officer for the Northern Ontario Zone, contacted Mr. Audet requesting that he attend an interview and complete a test for a bilingual intermodal dispatch coordinator position at Toronto's MacMillan facility. Mr. Audet was not consulted in advance about this position. His views about his suitability for the job were never sought. Nonetheless, as Mr. Theberge noted in a follow-up memo to Mr. King, Mr. Audet seemed eager to attend the interview and participate in the testing. [29] Mr. Audet travelled to Toronto to be interviewed and tested. He testified that he was given a general aptitude test to complete, containing elements that he described as clerical or secretarial. For instance, his typing skills were assessed. Mr. Audet had no previous work experience in any positions that required such skills. He had trouble with the testing, but not just because it related to areas in which he lacked experience and skill. He claims that he was also feeling headaches and pressure around his eyes that day. He was having trouble focussing on the questions, even though he could tell that some of them were simple. His hands were trembling. [30] His test results were very poor, falling between the first and fifth percentiles. The minimum score required for this type of position was the 25th percentile. He was therefore not offered the job. The person who administered the test wrote in her follow-up report to CN's human resources department that Mr. Audet had remarked a number of times during the testing that he felt the medication he was taking at the time was affecting his performance. [31] Shortly after the testing, a different neurologist took over Mr. Audet's treatment, and immediately changed the dosages of the medication being administered. On February 28, 2004, the neurologist wrote a note, which was forwarded to Medisys, stating that Mr. Audet's difficulties during the testing were related to his medication at the time. The neurologist urged CN to consider re-administering the test since those difficulties had now been resolved. Mr. Audet testified that CN did not react in any way to the note. He did not receive any offer of additional testing until May 2005, some five months after the Commission had referred the human rights complaint to the Tribunal. F. CN offers Mr. Audet the position of Train Movement Clerk - July 2004 [32] On July 19, 2004, Mr. Theberge sent a letter to Mr. Audet offering him the position of Train Movement Clerk (TMC) at the Administrative Building in MacMillan. Mr. Theberge noted that the job was being offered pursuant to CN's Disability Management Program. The position involved sedentary work, which would be supervised by the Program's Return to Work team, made up of Medisys nurses and doctors, as well as kinesiologists. Attached to the letter was a description of the physical demands and working conditions associated with the position. It indicates that a TMC may spend up to three hours per shift driving a vehicle. [33] On July 21, 2004, Mr. Audet replied in writing to Mr. Theberge's letter. Mr. Audet explained that he did not possess a valid driver's licence at the time. Following his seizure of November 2003, the Ontario Ministry of Transport had suspended Mr. Audet's driver's licence, on the advice of his neurologist. He was not eligible to regain his licence until early in 2005. Mr. Audet added in his reply that he hoped Mr. Theberge can take these factors into consideration. Mr. Audet concluded his letter by providing his telephone number and asking Mr. Theberge to contact him if he had any questions. [34] Mr. Audet testified that he did not get a response to his letter, so he placed a call to Mr. Theberge. They spoke on October 4, 2004. According to Mr. Audet, Mr. Theberge claimed, during their conversation, that CN had waived the driving requirement in Mr. Audet's case, and that Mr. Audet has been notified of this waiver previously. Mr. Audet replied to Mr. Theberge that on the contrary, he had never been informed of any such waiver. Mr. Audet then asked, if indeed the driving requirement had been waived, whether the position was still available. Mr. Theberge answered that it was not. G. CN invites Mr. Audet to undergo clerical testing - May 2005 [35] CN did not contact Mr. Audet again about employment possibilities until May 2005. CN invited him back to MacMillan Yard in Toronto to undergo testing. Suzanne Fusco, CN's human resources manager for Eastern Canada, testified that this was simply clerical testing, which did not relate to any specific position. The testing was administered on May 25, 2005, and according to Mr. Audet, it concentrated on secretarial skills even more than the first round of testing in December 2003. Typing ability was again assessed, and many portions of the testing were timed. Several weeks afterwards, Mr. Audet received a call from a representative of CN informing him that he had performed poorly on the test, without giving any further details. No follow-up report of the results was provided to him. H. CN offers Mr. Audet the Rule 42 Foreman position - October 13, 2005 [36] On October 13, 2005, just four days before the Tribunal began its hearing into the complaint, legal counsel for CN sent a letter to Mr. Audet's counsel stating that CN had an employment position available that could accommodate his various restrictions. The position is called a Rule 42 foreman, and the work location was to be in the Greater Toronto Area and in the Great Lakes District. Some testing would be required before Mr. Audet could obtain the position. [37] On October 14, 2005, Mr. Audet's counsel replied that the position was unsatisfactory. The work location was a great distance from his home terminal in Capreol, at substantially less pay than he formerly enjoyed. There was also some concern that the hours and duties of the job may be in violation of Mr. Audet's restrictions, established by CN's Chief Medical Officer in 1997. In addition, it was a position that fell into another bargaining unit, which was represented by a different union than the UTU. His ability to keep his seniority rights would depend on the cooperation of the new union. Mr. Audet's counsel underscored his client's reasonable expectation that CN would make greater efforts to accommodate his disability. But it was also pointed out that Mr. Audet was not refusing the offer of employment outright. [38] By the close of the hearing, Mr. Audet had not as yet formally rejected the offer, but during final submissions, Mr. Audet's counsel reiterated his above mentioned reservations regarding the position being offered. II. WHAT MUST BE PROVEN TO ESTABLISH DISCRIMINATION IN THIS CASE? [39] It is a discriminatory practice to refuse to continue to employ an individual on the basis of his or her disability (s. 3 and s. 7 of the Act). A disability is defined in s. 25 of the Act as any previous or existing mental or physical disability. This definition has been interpreted to mean any physical or mental impairment that results in a functional limitation, or that is associated with a perception of impairment (see Desormeaux v. Corporation of the City of Ottawa 2005 FCA 311 at para. 15). CN unquestionably perceives Mr. Audet's epilepsy, which resulted in his experiencing seizures, as impairing his ability to function in a safety-critical position. I am satisfied therefore that his condition constitutes a disability within the meaning of the Act. [40] The employer's conduct will not be considered discriminatory if it can establish that its refusal in relation to any employment is based on a bona fide occupational requirement (BFOR) (s. 15(1) of the Act). For any practice to be considered a BFOR, it must be established that accommodation of the needs of the individual or class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost (s. 15(2) of the Act). [41] The Supreme Court of Canada articulated the approach to be followed in determining whether a BFOR has been established in British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U., [1999] 3 S.C.R. 3 (Meiorin). The complainant has the initial burden of establishing that the standard or policy adopted by the respondent is prima facie discriminatory. [42] Once a prima facie case of discrimination has been established, the respondent may justify the impugned standard by establishing the following, on the balance of probabilities: The respondent adopted the standard for a purpose rationally connected to the performance of the job; The respondent adopted the particular standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose; The standard is reasonably necessary to the accomplishment of that work-related purpose. To show that the standard is reasonably necessary, the respondent must demonstrate that it is impossible to accommodate the complainant without imposing undue hardship on the respondent. It is incumbent on the respondent to show that it considered and reasonably rejected all viable forms of accommodation (British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 (Grismer)). A. The Prima facie case [43] Although CN never formally dismissed Mr. Audet, it unquestionably pulled him from service as a brakeman or conductor immediately after learning of the seizure that he experienced on September 10, 2002. CN decided to restrict Mr. Audet from his position for a period of five years, after which he could return, provided he remained seizure-free. CN did not assign him to any other position or duties in the meantime. [44] I am satisfied that Mr. Audet has established prima facie that CN effectively refused to continue to employ him, on the basis of his disability. It is therefore incumbent upon CN to establish that its refusal to employ Mr. Audet was justified. B. CN's justification [45] CN contends that its standard and ensuing course of conduct were justified. In light of Mr. Audet's significant medical restrictions, which included not only those related to his epilepsy but to his back injury as well, CN claims that it was unable to individually accommodate him without incurring undue hardship. C. Application of the Meoirin test (i) Was the standard adopted by CN for a purpose rationally connected to the performance of the job? [46] CN considers the positions of brakeman and conductor as safety critical. These workers are directly engaged in the operation of a train. As indicated in the RAC Guidelines, if the performance of persons in safety critical positions is impaired due to a medical condition, it could result in a significant incident affecting the health and safety of employees, the public, property or the environment. Individuals who hold such safety critical positions are therefore required to be medically fit to perform their duties. [47] CN applied a standard that it derived from the RAC Guidelines, according to which, in cases like Mr. Audet's, where epilepsy is being treated by antiepileptic drugs, an employee will be considered medically fit for a safety critical position if he or she has been free of seizures for a period of five years. The employee is subject to ongoing monitoring of his or her condition. [48] In my view, there is an obvious rational connection between the purpose of avoiding incidents affecting the health and safety of employees, the public, property or the environment, and the performance of the jobs of brakeman and conductor. The safe operation of the rail system is certainly a concern for CN. The prevention of an incident that could affect the health and safety of employees or the public is rationally connected to the performance of such safety critical jobs. (ii) Did CN adopt the standard in the good faith belief that it was necessary for the fulfillment of the purpose? [49] I am satisfied that CN adopted this standard in good faith, in the belief that it was necessary to ensure the safe operation of its rail system. (iii) Has it been demonstrated that the accommodation of Mr. Audet is impossible without imposing undue hardship on CN? [50] To show that a standard is reasonably necessary (the third step of the Meiorin test), an employer must demonstrate that it is impossible to accommodate individual employees sharing the characteristics of the complainant without imposing undue hardship upon the employer. a) Was Mr. Audet individually assessed? [51] The Supreme Court, in Meiorin at paragraph 64, counsels courts and tribunals to be sensitive to the various ways in which the individual capabilities of employees may be accommodated. An employer should inquire into the possibility that there may be different ways to perform the job while still accomplishing the employer's legitimate work-related purpose. The skills, capabilities and potential contributions of the individual complainant and others like him or her must be respected as much as possible. [52] These considerations are also reflected in the RAC Guidelines themselves. While s. 4 of the RAC Guidelines provides the general criteria for medical fitness in cases of epilepsy, s. 6 specifies that the employer should not conclude that an individual is unfit for duty without having first conducted an individual assessment with regard to the individual's particular position: 6. Individual assessment Individuals with epilepsy or other epileptic seizures must be assessed with regard to their suitability for a particular position. The nature of the duties and responsibilities associated with their specific Safety Critical Position must be closely evaluated before any final determination of their fitness for duty. [53] What efforts did CN make to individually assess Mr. Audet regarding his suitability to work as a brakeman or conductor? There was no evidence of any attempt by CN to make any such assessment until December 10, 2003, almost four months after Mr. Audet had filed his human rights complaint with the Commission, and precisely 15 months after experiencing his seizure. On that date, Dr. Claude Lapierre, CN's Chief Medical Officer, wrote a letter to Dr. Guy Rémillard, a neurologist in Montreal, asking his professional opinion on the nature of the seizure disorder that [Mr. Audet] is suffering from and [Dr. Rémillard's] recommendation on his fitness for duty in a safety critical position. [54] Dr. Rémillard did not meet or examine Mr. Audet personally, nor was he asked to do so. Jackie Anderson, a nurse on CN's Medisys team, testified that the standard protocol is to conduct a paper review of the medical condition of an employee with epilepsy. The assessment is made based on information from the employee's treating physicians and specialists. Ms. Anderson added that the assessment is usually made in consultation with CN's Chief Medical Officer. In some complex cases such as Mr. Audet's, the advice of a specialist on the medical condition is sought, in order to determine if Medisys' assessment is correct. [55] After reviewing the file, Dr. Rémillard discussed the matter with Dr. Lapierre, who in turn documented the content of their conversation in a follow-up e-mail message to Ms. Sheppard at Medisys. Apparently, at the core of the two physicians' discussions was the question of whether Mr. Audet's seizure was provoked by the deprivation of sleep associated with the requirements of his position. The RAC Guidelines provide that where the seizure is provoked, the employee can be deemed fit for duty in a safety critical position as early as one year following the seizure. In Dr. Rémillard's opinion, Mr. Audet's seizure was not provoked by sleep deprivation but came about instead as a recurrence of his epilepsy. Thus, as a person with epilepsy who had experienced a seizure, Mr. Audet was not fit to work in a safety critical position for a period of five years, based on s. 4 of the RAC Guidelines. [56] There is no evidence to indicate, however, whether Dr. Lapierre or Dr. Rémillard ever closely evaluated the nature of the duties and responsibilities associated with Mr. Audet's specific safety critical position, as provided for in s. 6 of the RAC Guidelines. Instead, based on the finding that the seizure was not provoked, Dr. Lapierre apparently felt that no further inquiry was warranted and he sent Mr. Audet's file back to Medisys. [57] I am not persuaded, from the evidence adduced in this case, that CN made any efforts to individually assess Mr. Audet with a view to determining whether his medical condition prevented him from performing his duties and responsibilities in his positions of brakeman and conductor. CN's sights seemed focussed on determining whether it was responsible for having provoked Mr. Audet's seizure due to of his workload over the summer of 2002. In this respect, it is very telling that one of Dr. Lapierre's final remarks in his e-mail is that Mr. Audet has very little chance of convincing any tribunal that he only had provoked seizure [sic]. There is no mention about whether Mr. Audet, as an individual, could still safely perform his job, and if not, how he could be accommodated. [58] There may be an additional explanation for why CN's attention was drawn to the question of whether the seizure was provoked by his workload, apart from the need to determine whether Mr. Audet's removal for service should be for one year or five. Evidence was led with respect to a prolonged dispute at the time between CN and the UTU about the workload of running trades employees, including brakemen and conductors. The debate centred on the employees' right to book rest periods after their runs. The UTU had taken the position that the employer had been pressuring its employees not to exercise this right to the fullest extent, with the objective of making them available sooner to take on their next run. The employer disagreed and argued that it was merely preventing excessive and abusive booking of rest periods by some employees. I suspect that these lingering issues may have influenced CN in the positions that it adopted following Mr. Audet's seizure, and may help explain why CN seemed so concerned with ensuring that it had not provoked the seizure, rather than concentrating on accommodating its employee. [59] Whatever CN's motives may have been, the fact is that there is no evidence of any individual assessment of Mr. Audet having been conducted in order to determine his suitability for his specific safety critical position. It is apparent to me that once CN learned that he had experienced an epileptic seizure, it applied the criteria set out in s. 4 of the RAC Guidelines in a routine, mechanical fashion, without any consideration of his individual circumstances or condition. CN simply decided that Mr. Audet would be restricted from working in his safety critical position for a five-year period, without any further examination into his individual suitability for his position. [60] CN contends that it was not necessary to assess Mr. Audet's individual suitability. The nature of a brakeman's and conductor's duties are such that any person who experiences an epileptic seizure, like Mr. Audet, is immediately medically unfit to perform these safety critical duties. [61] I am not persuaded by this argument. To permit an employer to invoke opinions about its employees' disabilities that it views as somehow self-evident, would hand to the employer too facile a justification for conduct that may be otherwise discriminatory. As the Supreme Court noted in Grismer at paragraph 19, the reason why accommodation must be incorporated into a standard is to ensure that each person is assessed according to his or her own personal abilities, instead of being judged against presumed group characteristics, which are frequently based on bias and historical prejudice. An individual assessment of the employee is therefore an essential step in the accommodation process (see Grismer at paras. 22 and 30; Meiorin at para. 65). b) Did the employer consider and reasonably reject all viable forms of accommodation? [62] Even if CN's opinion regarding the necessity to conduct an individual assessment in Mr. Audet's case was valid, however, the question that would still have to be addressed is whether CN, having determined that Mr. Audet was medically unfit to work in his position, considered and reasonably rejected all other viable ways of accommodating him. In my opinion, CN has failed to establish that it satisfied this requirement. [63] Mr. Audet testified that he and Mr. King had repeatedly asked CN to cooperate with him in finding some sort of accommodation that would allow him to return to work at CN. These attempts were in fact documented in the log that Ms. Sheppard kept of activity in Mr. Audet's Medisys file. As early as September 17, 2002, Ms. Sheppard noted, after having spoken to Mr. Audet, that he was concerned about the future outcome of his case and his ability to work. There are several references to Ms. Sheppard's conversations with Mr. King regarding his attempts at contacting CN to find Mr. Audet some form of accommodation. Ms. Anderson testified that she had reviewed the notes in Mr. Audet's file and she agreed that he had definitely spoken to Ms. Sheppard about having his disability accommodated. [64] How did CN react to these requests? What efforts did it make to accommodate Mr. Audet? CN has established certain guidelines that are to be followed when accommodating employees with special needs (the Accommodation Guidelines), excerpts of which are found in Tab 31 of Exhibit C-1. The Accommodation Guidelines provide that even where the supervisors and managers of the employee are aware that the employee needs to be accommodated, they have a responsibility to initiate the procedure for accommodation, even if the employee has not requested it (para. 7.12.3). CN's managers and supervisors were obviously aware of Mr. Audet's need for accommodation; it was they who had removed him from his job in the first place because, in their view, his disability rendered him unfit to work in a safety critical position. [65] What procedures for accommodation did CN initiate? Paragraph 7.12.4 of the Accommodation Guidelines provides that the first thing for the employer to do is to meet with the individual employee and allow him or her to present the problem or need. The employer representative should ask questions to the employee in order to fully understand the request, and both persons should then together discuss possible solutions. [66] Mr. Audet's evidence in this regard is uncontroverted. No CN representative met with him at any time, let alone as the first thing, to discuss his disability, ask questions, or discuss possible solutions. Mr. Audet sought as much information and assistance as he could obtain from CN, but it was all to no avail. After removing him from service, Mr. Nadon never spoke to Mr. Audet again about his job or any form of accommodation. Another trainmaster, Mr. Gillies, redirected Mr. Audet's inquiries to CN's Toronto office. The Toronto office promised to call Mr. Audet back, but did not. [67] In fact, there is no evidence to suggest that CN ever discussed with Mr. Audet the possibilities for his accommodation at any time prior to his filing the human rights complaint in August 2003. Some four months after the human rights complaint was filed, the risk management officer, Mr. Theberge, finally contacted Mr. Audet, but not to seek his input on the disability or to discuss possible solutions, pursuant to the Accommodation Guidelines. Mr. Theberge telephoned Mr. Audet to present him with just one option - come to Toronto to be interviewed and tested for one specific position. There was no discussion with Mr. Audet about whether he had any of the skills or qualifications to work in a clerical position, like dispatch coordinator. [68] Although this was the first accommodation option to actually be presented to Mr. Audet, did CN at least examine other accommodation possibilities prior to this point, albeit without the knowledge of Mr. Audet? The evidence indicates that CN's efforts, even in this respect, were minimal at best. [69] Ms. Anderson, the Medisys team leader, explained that it is not the responsibility of Medisys to find an accommodated position for disabled CN employees. The Medisys team's role in this regard is merely to contact CN's human resources department, the risk management officer and the employee's supervisors, to place a request that an accommodated position be found for the employee. [70] As I mentioned earlier, Ms. Sheppard, who had charge of Mr. Audet's Medisys file, kept a log documenting the activity in his file. Ms. Sheppard did not testify at the hearing. Her initial entries in the log following Mr. Audet's removal from service relate to the various documents and other information gathered with respect to his medical condition as well as the treatments and medication he was receiving. CN acknowledges that Mr. Audet always provided Medisys with all requested medical and other documents without delay. [71] Ms. Sheppard's log documents the numerous communications with CN initiated by Mr. Audet, Mr. King and herself, requesting accommodation for Mr. Audet. The requests were ultimately to no avail. [72] On November 13, 2002, Ms. Sheppard wrote in her log about a discussion she had with a risk management officer regarding the need to find an alternate position for Mr. Audet, given his restriction from working in a safety critical position for five years. On December 4, 2002, she recorded in her log that she had sent an e-mail message to the risk management officer, in which she reminded him of Mr. Audet's restriction to non-safety critical work and requested that he check if any accommodation [is] available. [73] On February 26, 2003, Ms. Sheppard apparently spoke about Mr. Audet's case to a senior adjudicator of the Great West Life Assurance Company, which was CN's disability benefits provider. Ms. Sheppard noted that the adjudicator undertook to contact CN and request if there was a non-safety critical position that Mr. Audet could fill. [74] A few days later, Ms. Sheppard made a similar effort herself. She recorded in her log that she sent an e-mail to the human resources department, the risk management officer, the Director of the OHS department and Mr. Audet's immediate supervisor, advising them of Mr. Audet's restrictions and current benefit status. She requested feedback from them on any possible job offers. There is no indication in Ms. Sheppard's log of whether anyone responded to this request, nor was there evidence led at the hearing of any such response. [75] On March 14, 2003, Mr. Audet apparently telephoned Ms. Sheppard. She recorded in her log that she advised him to ask CN directly if there were any non-safety critical positions available for him. One day later, on March 15, 2003, Ms. Sheppard noted that she had a discussion with Mr. King, the UTU representative, who told her that he would try to assist Mr. Audet in being accommodated somewhere at CN. [76] By July 30, 2003, however, it is obvious that the accommodation issue had not been resolved. Ms. Sheppard wrote that she had discussed again with Mr. King the matter of accommodating Mr. Audet. Mr. King said that he was going to speak to the risk management officer about the issue. [77] The results were evidently not fruitful. On September 15, 2003, Ms. Sheppard wrote that she had spoken on several occasions to Mr. King again, regarding the possibility of accommodation from CN, adding that there had been no response from the company. [78] On November 10, 2003, Ms. Sheppard wrote that she again spoke to Mr. King, who told her that he was trying to contact Mr. Theberge, the risk management officer, regarding the possible accommodation of Mr. Audet. [79] On November 18, 2003, Ms. Sheppard received an e-mail message from Paul Bourque, who was the human resources manager for Mr. Audet's area. The e-mail was also sent to several other persons, including Mr. Theberge, Mr. Nadon, and workers' compensation coordinator Louise Smolska. Mr. Bourque informed them that Mr. Audet had filed a human rights complaint. In order to prepare a response to the Commission, Mr. Bourque asked them to provide any information regarding their efforts to accommodate Mr. Audet since September 11, 2002, and in particular, to indicate any jobs that had been identified for accommodation. [80] Ms. Smolska's reply to Mr. Bourque's e-mail message was produced at the hearing. She said that no jobs were identified from her group. There is no evidence of any reply from the other persons who received Mr. Bourque's e-mail message. [81] On December 5, 2003, Mr. Bourque sent an e-mail message to several individuals within CN, who were involved with Mr. Audet's case, advising them that two positions had been found (Dispatch Coordinator and TRS Clerk) that were suitable for someone with his restrictions. Mr. Bourque requested that plans be made to have Mr. Audet tested for these positions. There is no indication if Mr. Audet or Mr. King were consulted in any way before this decision was made. The testing referred to in the e-mail message was the testing administered to Mr. Audet in Toronto in December 2003, in respect of which he did not obtain a passing mark, due in part, he claims, to the dosage of his medication at the time. [82] On April 13, 2004, Ms. Sheppard sent an e-mail message to Mr. Theberge and others, conveying Mr. Audet's communication to her that his medical condition had stabilized and that he would be able to be more successful in testing. Ms. Sheppard asked if there was any possibility of accommodating him in a non-safety critical position. Mr. Theberge simply replied that as far as any other position [is concerned], there is nothing available in Capreol. [83] What evidence is there of CN's attempts, if any, to find Mr. Audet work at his home terminal in Capreol? Mr. Nadon testified that he was not familiar with the requirement in CN's Accommodation Guidelines that the employee's managers meet with him to discuss the problem and possible solutions. Mr. Nadon acknowledged that no such meeting took place. In Mr. Nadon's view, accommodating Mr. Audet was the responsibility of the human resources department and the risk management office. [84] Mr. Nadon recalled that he was contacted to see if we had any work or position available for [Mr. Audet] and we had nothing in our department. He added that Medisys and the human resources department had approached him to see if we had any duties that could accommodate Mr. Audet. In light of the restrictions that prevented Mr. Audet from working in safety critical positions, Mr. Nadon said, We knew we could not modify the position [of brakeman or conductor] to accommodate him. That was obvious. He did not consider providing training to Mr. Audet that would enable him to become qualified to work in positions for which he was not yet qualified. He did not consider taking a number of tasks from several positions and bundling them together to create a new position, to accommodate Mr. Audet. Mr. Nadon acknowledged that in sum, his role in accommodating Mr. Audet was to keep his eyes open for any potential vacancies at Capreol that would respect Mr. Audet's restrictions. [85] Mr. Nadon's limited role in accommodating Mr. Audet raises an additional issue. In Meiorin, the Court alluded to the practical usefulness, in conducting the accommodation analysis, of considering the appropriateness of the procedure that the employer adopted to assess the issue of accommodation (see Meorin at para. 37). [86] The evidence supports Mr. Audet's submission that CN failed to even observe the procedures outlined in its own Accommodation Guidelines, and, in so doing, neglected to accommodate him procedurally. For instance, neither Mr. Nadon nor anyone else at CN met with Mr. Audet to discuss his disability and explore possible solutions, as indicated in the Accommodation Guidelines. [87] The Accommodation Guidelines also state that it is extremely important to keep records of these meetings with the employee, the various solutions proposed and the arguments used to accept or reject each option. There are of course no records of any meetings with Mr. Audet, as none were ever held. CN did not, however, even produce satisfactory records regarding solutions that CN may have analyzed internally and rejected on its own, without Mr. Audet's involvement. [88] Ms. Fusco filed in evidence an engineering bulletin, dated October 17, 2005. It consists of a list that sets out the available positions in the Great Lakes region of Ontario, at the time of the hearing. Mr. Audet contends that he could have been accommodated in the flag person position, which was available at that time. CN argues that none of the positions on the list were suitable for Mr. Audet. For instance, the flag person position involves regular overtime work, which would have been in breach of his restrictions. [89] It is, however, noteworthy that CN did not produce any engineering bulletin or similar report from any point prior to October 2005. There is no document in evidence demonstrating that following Mr. Audet's removal from service, CN looked at and analyzed any positions other than the TMC and Dispatch Coordinator positions. Furthermore, even if any other positions were in fact considered during this time, there was no record produced documenting the reasons why they were ultimately rejected. [90] CN's Accommodation Guidelines state that one way in which the employer can accommodate disabled employees, without creating undue hardship, is by providing them special training [...] to reintegrate into the workforce. CN never offered Mr. Audet the possibility of retraining. Ms. Fusco claims that CN would have offered Mr. Audet training for the dispatcher position, had he passed the initial testing phase. But I have found that the testing was centred on clerical skills, which he clearly lacked. He needed training in those very clerical skills being assessed, which would in turn have given him a better chance at passing the qualifying tests for the alternative positions. Ms. Fusco acknowledged in her evidence that the union representing the employees in the dispatcher positions would not have objected to Mr. Audet's getting training prior to testing. [91] In my view, these are just a few examples that demonstrate how CN did not accommodate Mr. Audet procedurally, having failed to even conform to the basic provisions laid out in CN's own Accommodation Guidelines. [92] Overall, therefore, what accommodation efforts did CN make in the three-year period between the occurrence of the seizure on September 10, 2002, and the start of the hearing, on October 17, 2005? CN put forth a total of four proposals for the accommodation of Mr. Audet's disability: December 2003 - An invitation to complete a test that would enable Mr. Audet to qualify for the position of intermodal dispatch coordinator at MacMillan Yard in Toronto. July 2004 - An offer of a Train Movement Clerk position at MacMillan Yard in Toronto. May 2005 - An invitation to undergo clerical testing. October 2005 - An offer of a Rule 42 Foreman position at MacMillan Yard in Toronto. [93] Do these efforts demonstrate that CN considered and reasonably rejected all viable forms of accommodation? In my view, the answer is no. [94] Ms. Fusco was called by CN to testify as to its efforts to accommodate Mr. Audet. In her examination in chief, she stated that CN had actively looked for any suitable vacancies from September 2002 onwards. Yet, in cross-examination, she confirmed that she was not involved in any attempts to accommodate him prior to 2004, so she could not really speak to any previous accommodation efforts. She also acknowledged that she had not kept records or notes of accommodation efforts in which she did participate. Mr. Nadon, as I have already mentioned, testified that he did not make any real attempts at accommodating Mr. Audet other than basically keeping his eyes open for vacant positions. In Mr. Nadon's view, it was up to the human resources department and the risk management officer to arrange for Mr. Audet's accommodation. [95] CN did not consider offering training to Mr. Audet to enable him to qualify for other positions. There is no evidence that CN considered re-bundling a number of job tasks to enhance employment opportunities for Mr. Audet. [96] Yet, CN still argues that between 2002 and 2005, the positions that were offered to him were the only jobs that Mr. Audet could have filled, given his restrictions, which included the WSIB restrictions relating to his 1995 back injury. [97] As recently as July 2005, however, the UTU proposed a number of positions to CN for which Mr. Audet was qualified and which were consistent with his WSIB restrictions as well as the restrictions related to his epilepsy. These positions included those of Utility Person and Fire/Safety Watch. CN contended at the hearing that these positions were no longer available when the UTU proposed them. CN did not, however, explain why they were not offered to Mr. Audet when they were available. [98] One of the other positions that the UTU proposed in 2005 was that of Traffic Coordinator. Ms. Fusco testified that Mr. Audet could not be assigned to this position because it was considered to be safety critical. She acknowledged, however, that CN gave no consideration to modifying the duties of this position to conform to Mr. Audet's restrictions. She acknowledged that CN has in the past modified safety critical positions to accommodate an employee's restrictions. [99] One employee in particular was diagnosed with epilepsy while employed with CN in the safety critical position of conductor, just like Mr. Audet. As a form of accommodation, CN assigned him to the safety critical position of traffic controller at the Capreol terminal. His duties were modified to accommodate him. Traffic controllers belong to the same UTU bargaining unit as Mr. Audet. [100] In my view, it is evident that many viable forms of accommodation were left unexplored by CN in Mr. Audet's case. Moreover, it is clear that what little exploration CN did engage in commenced only after the human rights complaint was filed by Mr. Audet in August 2003. Prior to this point, the efforts made to accommodate him were essentially non-existent. [101] Counsel for CN suggested in his final submissions that CN's delay in initiating its efforts to accommodate Mr. Audet was due to the uncertainty related to the nature of his disability. Until Dr. Lapierre's opinion was obtained, it was not clear whether or not Mr. Audet had experienced a provoked seizure. [102] This uncertainty is, however, beside the point. Whether or not the seizure was provoked, the fact is that as of September 12, 2002, CN had removed Mr. Audet from service because of his disability. From that moment forward, CN had a duty to actively seek out ways to accommodate its employee. A delay was not justified. If CN needed to learn what the implications of Mr. Audet's epilepsy and seizure were, it could have started by at least meeting and discussing his situation with him. Mr. Audet had supplied Medisys with his medical file. CN had more than sufficient information to commence its accommodation efforts. Besides, the basic restriction imposed on Mr. Audet was that he not be employed in safety critical positions. CN could easily have begun searching for non-safety critical work for him to perform. Yet, there is no evidence of any such attempts prior to December 2003. c) Would accommodating Mr. Audet have imposed undue hardship on CN? [103] Although I have found that several options for Mr. Audet's accommodation were not considered by CN, s. 15(2) of the Act provides that an employer may nonetheless justify its refusal to employ an individual by showing that accommodating the individual's needs would impose undue hardship on it, considering health, safety and cost. CN argued that health and safety concerns prevented Mr. Audet from working in any safety critical positions. Assuming that these concerns are legitimate, on what basis does CN argue that accommodating Mr. Audet, in a manner that would not place him in a safety critical position, would impose undue hardship? How would bundling several non-safety critical job tasks into one position or offering Mr. Audet retraining, for instance, impose undue hardship on CN, based on the only consideration still available under s. 15(2), cost? [104] There is no evidence before me of the cost implications of offering these forms of accommodation to Mr. Audet. Ms. Fusco testified that in Mr. Audet's case, money or cost was not a barrier to CN's accommodating him. Mr. Audet filed into evidence a Canadian Press wire story from the July 21, 2005, edition of the North Bay Nugget newspaper, which reported that CN's profit in the first six months of 2005 had surged to $715 million, up from $536 million for the same period in 2004. CN's revenues in the first half of 2005 were $3.54 billion. CN's president is quoted in the article as having said, Our employees are performing strongly and we expect to continue to deliver solid benefits to shareholders. [105] In Central Alberta Dairy Pool v. Alberta (Human Rights Commission) [1990] 2 S.C.R. 489 at para. 62, the Supreme Court pointed out that the size of an employer's operation may influence the assessment of whether a given financial cost is undue. CN is certainly a large employer. Ms. Fusco indicated in her evidence that Medisys alone is responsible for 5,000 CN employees. CN has developed an internal infrastructure to address the particular needs of its employees. Formal guidelines have been adopted that give direction on how to accommodate those needs. Ms. Fusco testified that at any given time, Medisys is actively involved in the files of up to ten percent of those 5,000 employees. [106] It is incumbent upon CN to demonstrate in real, concrete terms how the costs associated with accommodating Mr. Audet would impose undue hardship on CN. The Supreme Court of Canada, in Grismer at paragraph 41, recognized that in some circumstances, excessive cost may justify a refusal to accommodate those with disabilities. Impressionistic evidence of increased expense will not, however, suffice. The Court cautioned that one must be wary of putting too low a value on accommodating the disabled, for it would be too easy to cite increased cost as a reason for refusing to accord the disabled equal treatment. [107] In the present case, there was essentially no evidence presented, impressionistic or otherwise, regarding the costs associated with accommodating Mr. Audet and their effect on CN and its operations. CN has not, therefore, established that accommodating Mr. Audet's needs would impose undue hardship on CN. d) Did Mr. Audet hinder CN's accommodation efforts? [108] CN claims that it has made all reasonable efforts to accommodate Mr. Audet and that it is his own inflexibility that has prevented a solution from being found. The Supreme Court of Canada, in Renaud v. Central Okanagan School District No. 23, [1992] 2 S.C.R. 970 at paras. 43-44, stated that a complainant has a duty to facilitate the search for accommodation. Thus, in determining whether the duty to accommodate has been fulfilled, the conduct of the complainant must be considered. When an employer has initiated a proposal that is reasonable and would, if implemented, fulfill the duty to accommodate, the complainant has a duty to facilitate the implementation of the proposal. If failure to take reasonable steps on the part of the complainant causes the proposal to founder, the complaint will be dismissed. [109] What aspects of Mr. Audet's conduct allegedly demonstrate that he caused a reasonable proposal to founder? 1. Mr. Audet's reaction to the July 2004 TMC job offer [110] Much was made of Mr. Audet's reaction to CN's July 2004 offer of the Train Movement Clerk position, at MacMillan Yard in Toronto. CN contends that this was a reasonable proposal, which Mr. Audet should have accepted. But did Mr. Audet refuse the offer in fact? He did not say that he was refusing it in his July 21, 2004, letter to Mr. Theberge. Mr. Audet simply disclosed the fact that he did not possess a driver's licence. The document setting out the physical demands and working conditions for the TMC position, which Mr. Theberge had sent to Mr. Audet, clearly stated that the position involved working in a vehicle (driving). The environmental conditions for the position stipulated that depending on tasks, [the employee] may spend up to 3 hrs [per 8-hour shift] in vehicle driving around yard. [111] In my view, it was perfectly reasonable for Mr. Audet, having viewed these working conditions related to the proposed position, to have alerted CN about a legal impediment to his performing the job duties. He was not being uncooperative. On the contrary, his disclosure of this fact to CN served to ensure that efforts would not be wasted in accommodating him in a job that he was legally prevented from performing. What good would it have done for Mr. Audet to have accepted the position, in the knowledge that he clearly lacked one of the necessary qualifications? [112] CN appeared to suggest that it had waived the requirement for a driver's licence in Mr. Audet's case, but CN led no evidence of its own to support this contention. Instead, it was Mr. Audet himself who reported in his testimony that Mr. Theberge had made this assertion during a telephone conversation with him in October 2004. Mr. Audet denies ever having been told that the requirement to drive had been waived in his case, until that October 2004 telephone conversation, when it was already too late. His evidence is uncontroverted. Mr. Theberge did not testify and there is no evidence to support this assertion. [113] If CN's intention had indeed been to waive the driving requirement, why did Mr. Theberge not simply write back to Mr. Audet and advise him that he was mistaken? In his letter, Mr. Audet had, after all, invited Mr. Theberge to contact him if there were any questions. Mr. Audet even provided his telephone number. Mr. Theberge did not show the courtesy to even place a call to Mr. Audet. I do not consider Mr. Audet's reaction to the July 2004 job offer to have caused the proposal to founder. If anything, the failure of the proposal is due to its inappropriateness as a form of accommodation, and CN's failure to respond and address the concern raised by Mr. Audet in his letter. 2. The UTU's alleged failure to facilitate the accommodation [114] CN also argued in final submissions that the UTU had hindered the implementation of accommodation in Mr. Audet's case. Reference was made to the union's five proposals for possible accommodation put forward in July 2005. CN contends that the union did not make any similar proposals prior to this point, and that its failure to do so demonstrates somehow that the union (and by extension Mr. Audet) did not fulfill their duty in the search for his accommodation. [115] This argument is obviously based on a misreading of Renaud. The Supreme Court was quite clear in this regard. The duty on the complainant to do his or her part does not mean that the complainant has a duty to originate a solution. The employer is in the best position to determine how the complainant can be accommodated without imposing undue hardship on the operation of the employer's business. It is only once an employer has initiated a reasonable proposal that the complainant has a duty to facilitate its implementation (Renaud at para. 44). [116] How can the UTU and Mr. Audet be accused of failing to fulfill their duty to facilitate accommodation proposals when CN did not put forth a single accommodation proposal until December 2003, and did not make a single formal job offer until July 2004, almost two years after Mr. Audet was removed from service? I find it disingenuous on CN's part to suggest that Mr. Audet and the UTU were somehow tardy in addressing accommodation, when the evidence is clear that Mr. Audet and Mr. King had been imploring CN to engage in the accommodation process since 2002, while CN on the other hand had not shown any reaction or initiative whatsoever until well after Mr. Audet had filed his human rights complaint. 3. Mr. Audet's reaction to the offer of the Rule 42 Foreman position [117] While CN may have failed to address the issue of accommodation for an extended period, can it nonetheless be argued that Mr. Audet's decision not to immediately accept CN's most recent offer (Rule 42 Foreman), made on October 13, 2005, constitutes a breach of his duty to facilitate the search for accommodation? [118] First of all, I am not certain that this offer sheds any light on the question of whether CN accommodated Mr. Audet to the point of undue hardship. It seems to me that this job offer should more appropriately be characterized as a settlement offer, coming as it did just days before the hearing commenced. Second, as of the last day of the hearing, Mr. Audet had not as yet formally rejected the offer. Furthermore, in my view, the concerns raised by Mr. Audet are not unreasonable. For instance, it was not abundantly apparent from CN's offer whether the job's working conditions satisfied Mr. Audet's work restrictions. Indeed, CN was itself only able to confirm on the very last day of the hearing that the position complied with his work restrictions. [119] Mr. Audet's reaction to the offer of the Rule 42 Foreman position is not in my view indicative of his having hindered CN's accommodation efforts. III. FINDING OF DISCRIMINATION [120] For all these reasons, I find that Mr. Audet was removed from service on account of his disability, in breach of s.7 of the Act. CN has not established that its refusal to continue to employ Mr. Audet was justified based on a bona fide occupational requirement, pursuant to s. 15 of the Act. Mr. Audet's complaint has therefore been substantiated. IV. WHAT REMEDIES DOES MR. AUDET SEEK? A. An order that CN review its accommodation policy [121] Mr. Audet requests an order, pursuant to s. 53(2)(a) of the Act, that CN take measures, in consultation with the Commission, to redress its failure to properly accommodate its employees, as evidenced in his own case. Mr. Audet acknowledges that CN has a policy on accommodation, i.e. the Accommodation Guidelines, and that it may in fact be a good policy, but argues that it is clearly not being applied or implemented properly. [122] I have referred in my decision to the Accommodation Guidelines, and have determined that those at CN responsible for their implementation indeed failed to follow them in Mr. Audet's case. In my view, Mr. Audet's request is justified. [123] I therefore order CN to take measures, in consultation with the Commission on the general purposes of the measures, to review its accommodation policy and ensure that it is complied with by the individuals and groups responsible for its implementation. B. Return to active service [124] Mr. Audet seeks an order, pursuant to s. 53(2)(b) of the Act, directing CN to return him to active service in his position of brakeman/conductor, with any necessary modifications to the duties of that position that would allow him to perform his job safely and within his restrictions. There is evidence that other employees in similar circumstances have been accommodated, including a Capreol employee with epilepsy who was accommodated with modified duties in his otherwise safety critical position. [125] After learning of Mr. Audet's seizure in September 2002, CN applied the RAC Guidelines in a mechanical fashion, and removed Mr. Audet from service without assessing his individual medical fitness to work in his specific position, as provided for in the RAC Guidelines and CN's Accommodation Guidelines. Section 53(2)(b) of the Act states that where the Tribunal finds the complaint is substantiated, it may order a respondent to make available to the victim of the discriminatory practice, on the first reasonable occasion, the rights, opportunities or privileges that were denied the victim as a result of the practice. [126] In order to provide this remedy in the present case, Mr. Audet must first be returned to his job. I therefore order CN to return Mr. Audet to active service in his position of brakeman/conductor, based out of the Capreol terminal. CN is further ordered to cooperate fully with Mr. Audet and his union, the UTU, in conducting the individual assessment that was denied him at the time, in order to determine which of his duties, if any, require modification to ensure that he is able to perform his job safely and without risk to himself, other persons, property or the environment. [127] If Mr. Audet, CN and the UTU determine that he cannot be accommodated in this fashion, I order CN to cooperate fully with Mr. Audet and the UTU to accommodate him, on the first reasonable occasion, in a different position based in Capreol. If it is determined that no such option is available in Capreol, then CN is ordered, on the first reasonable occasion, to work with Mr. Audet and the UTU to look for an appropriate accommodation position outside of Capreol. [128] With regard to all of these accommodation efforts, priority is to be placed on positions that come within the same bargaining unit as Mr. Audet's. C. Compensation for lost wages [129] I order CN to compensate Mr. Audet for all wages and benefits that he has lost since his removal from service on September 12, 2002, pursuant to s. 53(2)(c) of the Act. The parties undertook at the hearing to engage in discussions with a view to reaching an agreement regarding the calculation of the sum for this compensation, in the event that the Tribunal would issue such an order. The parties will take into account all relevant factors, such as the disability benefits received by Mr. Audet during this period, and any interest due on the sums owing to him. [130] Mr. Audet testified as to the efforts he has made to look for other work since 2002, while waiting for CN to accommodate him. He claims that he has made hundreds of job applications, and has been interviewed dozens of times. He is frequently asked at these interviews why CN removed him from service. When he discloses that it was due to an epileptic seizure, employers typically thank him for showing interest in the job they are trying to fill, but opt not to employ him. Earlier in his working career, Mr. Audet gained the qualifications to work in Ontario as a Registered Nursing Assistant and an Emergency Medical Care Assistant. He testified that despite holding these certifications, he was unable to find work anywhere in the Sudbury area. [131] In my view, Mr. Audet's efforts at mitigating his damages have been reasonable, especially when considering that CN has never formally dismissed him. It was reasonable for him to have expected that CN, pursuant to its own guidelines and policies, would make a proposal for accommodation to him at some point following his removal from service. [132] The parties are therefore instructed to assume, in their discussions regarding the calculation of Mr. Audet's lost wages and benefits, that he has fulfilled his duty to mitigate his damages. D. Compensation for pain and suffering - s. 53(2)(3) of the Act [133] Mr. Audet testified as to the emotional impact he felt as a result of his removal from service and the subsequent failure by CN to accommodate him. His wife, who is a registered nurse, became the family's main financial provider. After Mr. Audet's disability benefits ended, she had to begin working on a full-time basis, which involved taking on 12-hour shifts. Their family is made up of two minor children and a 16-year old niece who is under their care. The strain on Mr. Audet's wife of having to provide for all of the family's financial needs on her own took a heavy toll on their marriage. He has needed to take sessions with a counsellor. He testified as to his feeling of abandonment after being denied work by CN. It lowered his self-esteem and made him feel like a nobody. Taking into account all of these circumstances, I order CN to pay Mr. Audet $10,000 in compensation for his pain and suffering. [134] Mr. Audet contends that his seizure of September 10, 2002, was provoked by an excessive work load, for which he blames CN. Mr. Audet's legal counsel argued that the compensation for pain and suffering should be augmented to take this factor into account. I disagree. [135] To begin with, I do not understand why Mr. Audet's pain and suffering should be assessed differently, depending on whether the seizure was provoked or not. It would appear to me that the objective assessment of a victim's pain and suffering should not vary on account of the alleged blameworthiness of the respondent's conduct. [136] Moreover, on the balance of probabilities, I am not convinced from the evidence adduced at the hearing that the seizure was indeed provoked. No medical expert testified, but copies of reports prepared by various physicians were produced by Mr. Audet and CN, which alternately concluded that the seizure was or was not provoked. It is worth noting that while the strain of the workload seems to have caused Mr. Audet to take a 96-hour leave from work in June 2002, it was not established that the workload in the months following was extraordinary. In addition, as Dr. Remillard and Dr. Lapierre noted, the three seizures that Mr. Audet experienced 9 to 14 months after being removed from service would appear to at least cast some doubt as to his claim that the seizure was provoked. Taking all of these factors and considerations into account, I am not persuaded that the September 10, 2002, seizure was provoked. E. Special compensation - s. 53(3) of the Act [137] Section 53(3) of the Act provides that the Tribunal may order a respondent to pay up to $20,000 in compensation to a victim of discrimination if the respondent engaged in the discriminatory practice wilfully or recklessly. Mr. Audet's legal counsel argued that CN was completely reckless in this case. He cited the unbelievable lack of communication between the various departments, the lack of any leadership, and the failure to involve Mr. Audet and the UTU in the accommodation process, as evidence in support of this submission. He also referred to the fact that it took 15 months before CN made any effort to accommodate him, and that over a period of three years, only two offers of employment were made. Mr. Audet was not qualified for the first job offered, Train Movement Clerk, for lack of a driver's licence. The second job offer was essentially put forth by CN during the hearing. Mr. Audet is requesting that CN be ordered to pay the maximum amount of compensation under this head. [138] I agree that CN's conduct in this case was reckless. It is clear that CN was familiar with its duty to accommodate its disabled employees. It had adopted an accommodation policy, in the form of the Accommodation Guidelines, which set out the procedures to be followed with respect to any employees having special needs who required accommodation. Yet, the persons at CN who were responsible for the management of Mr. Audet's case ignored their responsibilities under the policy and did not make any efforts to accommodate him for months on end, until he finally forced their hand by filing his human rights complaint. After being put on notice that their conduct was to be examined against the Act, CN's accommodation efforts were still meagre at best. This course of action was, in my view, reckless. [139] In the circumstances, I order CN to pay Mr. Audet the sum of $10,000 in compensation, pursuant to s. 53(3) of the Act. F. Costs [140] Mr. Audet seeks an award for his legal costs, either on a solicitor/client basis or alternatively, on the Federal Court scale. He bases his claim principally on the findings in two relatively recent Tribunal decisions, Brown v. Royal Canadian Mounted Police, 2004 CHRT 24, and Brooks v. Canada (Department of Fisheries and Oceans), 2005 CHRT 14. Both decisions were brought before the Federal Court for judicial review. At the time of the hearing into the present complaint, the Federal Court had not as yet issued a judgment in either case. [141] After the close of the hearing, the Federal Court released its judgment in Brown on December 13, 2005, (2005 FC 1683), and more recently in Brooks, on April 21, 2006, (2006 FC 500). In both cases, the Court set aside the Tribunal decisions. [142] Mr. Audet's legal counsel suggested, during final arguments, that the determination of the issue of costs could be deferred at least until such time as the judicial reviews of the Tribunal decisions are completed. In my view, this is a sound course to follow. Considering the outcome of the judicial reviews, additional submissions from the parties would be welcome. To minimize delay, I have rendered my decision to the extent possible. The parties are invited to submit to the Tribunal any follow-up submissions at their convenience. As I indicate below, I will retain jurisdiction to deal with any remedial issues that may subsequently arise, which includes the question of legal costs or expenses. [143] In the meantime, as Mr. Audet's legal counsel had also suggested, the claim for legal costs could be added as a topic for discussion between the parties, along with the calculation of the lost wages and benefits. G. Interest [144] Interest is payable in respect of all the awards made in this decision (s. 53(4) of the Act). The interest shall be simple interest calculated on a yearly basis, at a rate equivalent to the Bank Rate (Monthly series) set by the Bank of Canada. With respect to the compensation for pain and suffering (s. 53(2)(e) of the Act) and the special compensation (s. 53(3)), the interest shall run from the date of the complaint. As I indicated earlier, however, the parties have undertaken to engage in discussions regarding the calculation of the interest owed on the lost wages and benefits. H. Retention of jurisdiction by the Tribunal [145] The Tribunal will retain jurisdiction to receive evidence, hear further submissions and make further orders, if the parties do not reach an agreement, with respect to the issues I have left to them to discuss, and with regard to any other issues or difficulties arising from the interpretation or implementation of the remedies ordered. As I have also indicated, I will likewise retain jurisdiction to deal with Mr. Audet's claim for legal costs. Signed by Athanasios D. Hadjis OTTAWA, Ontario May 16, 2006 PARTIES OF RECORD TRIBUNAL FILE: T1030/1105 STYLE OF CAUSE: Jean-Raymond Audet v. Canadian National Railway DATE AND PLACE OF HEARING: October 17 to 21, 2005 October 25 and 26, 2005 Subury, Ontario Toronto, Ontario DECISION OF THE TRIBUNAL DATED: May 16, 2006 APPEARANCES: Denis Ellickson For the Complainant (No one appearing) For the Canadian Human Rights Commission J. Curtis McDonnell For the Respondent

2006 CHRT 26

CHRT

Brown v. National Capital Commission and Public Works and Government Services Canada

en

2006-06-06

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6810/index.do

2023-12-01

Brown v. National Capital Commission and Public Works and Government Services Canada Collection Canadian Human Rights Tribunal Date 2006-06-06 Neutral citation 2006 CHRT 26 File number(s) T760/1003 Decision-maker(s) Groake, Paul Dr. Decision type Decision Decision status Final Grounds Disability Decision Content Between: Bob Brown Complainant - and - Canadian Human Rights Commission Commission - and - National Capital Commission - and – Public Works and Government Services Canada Respondents Decision Member: Dr. Paul Groarke Date: June 6, 2006 Citation: 2006 CHRT 26 Table of Contents I. Introduction II. Facts A. Evidence For The Complainant and CHRC (i) Bob Brown (ii) David Lloyd Rapson (a) Mr. Rapson’s reports (b) Mr. Rapson’s conclusions (iii) Barry McMahon (iv) Giles Warren B. Evidence For The NCC (i) Gérald Lajeunesse (ii) Jerrold Corush (iii) Robert Martin (iv) Éric Hébert (v) Katie Paialunga C. Evidence For Public Works (i) Idelle Matte III. Law A. Are the York Street Steps a facility or service? B. Section 15 (i) Are the factors in s. 15(2) exhaustive? (ii) The mandate of the NCC must be respected C. The prima facie test D. Meiorin: the principles of universal design E. The duty to accommodate: reasonableness F. The duty to consult IV. Liability: The Case Against The NCC A. The York Street Steps are not accessible B. The process of consultation was deficient C. The real problem lies in the design of the York Street Steps D. Conclusions V. Liability: The Case Against Public Works And Government Services A. Public Works is not immune from a finding of liability B. It is too late to complain of a defect in the process C. The merits of the case against Public Works VI. Issues On Remedy VII. Summary Of Major Findings Appendix A (Map and photos of the area) Appendix B (Principle of Universal Design) The Appendices Are Only Available In PDF Format I. Introduction [1] The complaint before me alleges that the National Capital Commission (NCC) has discriminated against Bob Brown by denying him access to services by failing to accommodate [his] disability (wheelchair user), contrary to section 5 of the Canadian Human Rights Act. The alleged discrimination is ongoing. [2] The service referred to in the complaint is the York Street Steps, which are located at the intersection of York Street and Sussex Drive, in Ottawa. The steps were completed in 1999. Mr. Brown alleges that they are not accessible. Mr. Brown and the Canadian Human Rights Commission (CHRC) submit that persons who cannot climb the steps have no way of going from Sussex Drive at the bottom of the stairs to Mackenzie Avenue at the top. [3] There was a viewing of the site at the outset of the hearing. I have attached a street map and a few pictures, to give readers a better understanding of the geographical location and appearance of the steps. There is a T-intersection at Sussex: York Street ends in a steep set of stairs, which takes those people who can climb the steps to Mackenzie Avenue and Major’s Hill Park. The Peace Tower and the spire of the library of Parliament are visible from York Street. A bystander can see the Rideau locks descending to the Ottawa River and look across a chasm to Parliament Hill. The heights on either side are impressive. [4] One of the reasons why people might want to use the steps is that there is a vista from Major’s Hill Park. I say this because the situation has evolved since the date of the complaint, and the case for the Complainant and the Commission now rests primarily on the use of the Park. The original particulars state that the steps provide a main thoroughfare between the Parliament Buildings and the Byward Market. This may have changed since another set of stairs and an elevator has now been built down the street from the York Street Steps, at the Daly site. There was evidence that this provides a more convenient route between Parliament Hill and the Byward Market. [5] I should also say something about the National Capital Commission. The NCC is a Crown Corporation, which takes its mandate from the National Capital Act. The Act gives the NCC responsibility for the development, conservation and improvement of the National Capital Region. The evidence is that the York Street Steps are on land owned by the Crown, but administered by the NCC. The NCC is responsible for their construction and maintenance. [6] The NCC is responsible for the general area and insisted that an elevator be provided at the Daly site, some distance down Sussex. The real dispute between the parties is whether this kind of accommodation is sufficient. Mr. Brown and the CHRC say no. They are willing to accept an elevator immediately adjacent to the site; but argue that the Daly elevator is too far away. They also argue that failure to provide access at the site of the steps discriminates against Mr. Brown and persons with disabilities. [7] The hearing in the case was delayed by an application from the CHRC to add Public Works Government Services Canada (Public Works) as a party. This arose out of the fact that Mr. Rapson, the expert called by the CHRC, testified that an elevator shaft in an office block immediately adjacent to the steps might be used to provide access. This office block is known as the Connaught Building. It is currently occupied by the Canadian Customs and Revenue Agency under a licence to occupy granted by Public Works, which has the care, management and control of the building on behalf of the Crown. The application was allowed. [8] The case raises many legal issues pertaining to the responsibilities of the NCC and other public actors in the area of accommodation. There must be many sites where similar issues might arise. The case also raises a narrower question with respect to the duty of the Respondents like the NCC to consult with those who require accommodation. Although this leads into a discussion of some larger issues, each case must be decided on its own merits. I have accordingly restricted myself to the facts of this case. [9] The following decision essentially deals with liability. I agreed that I would only deal with the different proposals to provide accommodation at the York Street Steps, if that became necessary. II. Facts A. Evidence For The Complainant and CHRC (i) Bob Brown [10] Mr. Brown has been a quadriplegic since 1972 who nevertheless likes to do things on his own and takes pride in his independence. Mr. Brown currently lives on Murray Street, three blocks from the York Street Steps. He testified that he likes to visit Major’s Hill Park, [11] At the outset of the hearing, Mr. Brown testified that there are many festivals in Major’s Hill Park. He changed his tack, however, when the Respondent corrected this assertion. Mr. Harnden: As I recall, you emphasized the importance of accessing the park for the purpose of festivals. Are you withdrawing from that as being a priority usage? A. No, I am suggesting that it is not only for festivals. People do go there for festivals, but at other times, as well, from the market. It is just a nice park to go to. You go up and it overlooks the Ottawa River. It's an historic site. There are benches. People go in the evenings, and things like that, just to be in a green space. He later testified that it is a good place to watch the sunset. [12] The antecedents to the complaint are more political, however. Mr. Brown was the Chairperson of the City of Ottawa Disability Issues Advisory Committee in 1998, when the steps were being built. Although the NCC did not go through the municipal planning process, since it comes under federal jurisdiction, the proposal to build the steps came to the attention of the Advisory Committee. The Committee discussed the proposal and felt that there were reasons for concern. [13] As Chairman of the Committee, Mr. Brown wrote a letter to Mr. Jim Watson, the Mayor of the City of Ottawa at the time. The second paragraph of the letter begins: We, on the Committee, unanimously submit that the design of the new steps is totally unacceptable since it repeats the same architectural barriers which we have been trying for decades to eliminate. The Committee asked the Mayor to arrange a meeting with Mr. Beaudry, the Chairperson of the NCC, to deal with the lack of access at the site. [14] Mr. Brown thought that the Mayor wrote to the NCC, as suggested, and requested a meeting. It appears that the NCC did not receive this letter, however, and the evidence before me suggests that the letter was never sent. The question of the steps nevertheless became a public controversy, in part because of a letter that Mr. Brown sent to the editor of Ottawa Citizen. [15] The American Embassy is immediately adjacent to the steps, on the north side of the block. The Committee also wrote a letter to someone at the American Embassy, suggesting that the proposed stairs would not be in compliance with the Americans with Disabilities Act. The Embassy was apparently paying for their design. The administrative officer for the American Embassy replied that the NCC had the final authority to determine what would be built at the site. Their concerns were limited to a desire for continuity in the style of the steps and the Embassy. [16] The NCC responded to the controversy by arranging a meeting with the Access Committee of the Disabled Persons Community Resources Centre on March 17, 1999, to discuss the situation. The meeting was closed. There was a disagreement between the parties as to whether the Access Committee was the appropriate organization to consult. Mr. Brown was allowed to attend the meeting, but on the basis that he would not discuss it with the Municipal Advisory Committee. He testified that he felt gagged. [17] Mr. Brown said that the NCC used the meeting to explain their plans for the Daly site, which would provide access between Sussex and MacKenzie. This did not address his concerns. He felt that he was getting nowhere and filed the present complaint on August 31, 1999. This was after the steps had been constructed. There was an investigation by the CHRC, which took a considerable period of time. [18] There were protracted discussions between the parties and the NCC eventually held another meeting, on July 23, 2002, to discuss the options. The participants included representatives from the City of Ottawa Advisory Committee. Mr. Brown was not invited. He felt that the NCC had its mind made up from the beginning and was not willing to consider anything, other than the Daly site. He described the meeting as a sham. [19] Despite its efforts, the CHRC was unable to resolve the matter and the complaint was referred to the Canadian Human Rights Tribunal. The position of Mr. Brown and the CHRC at the hearing was relatively simple. The York Street Steps are not accessible. There is no accommodation. A person in a wheelchair at the bottom of the steps has no way of going to the top. This is discriminatory. The Daly site provides another route through the area, but does not provide access at the steps. [20] Mr. Brown has two basic options at the bottom of the steps. He can turn right, and take the long way around the American Embassy, which would take him to the northeast corner of the Park. Or he can turn left and go through the Daly site. The distance in both directions is a problem. The incline is particularly difficult for a person using a manually operated wheelchair. [21] Mr. Brown’s fundamental complaint is simpler, however. He objects to the use of the Daly site because it requires those people who cannot climb the steps to go elsewhere. This separates people. Mr. Brown: My primary concern is, because of the segregation, it is an unequal level of access. I have to be split up from the people I am travelling with to get to the level change at the top … My biggest concern is the segregation. Mr. Brown says that he should be able to access the top of the steps from the base of the steps. There should be accommodation at the site. [22] Mr. Brown testified that the delay in using the alternative routes was enough to lose any party that might be waiting for him at the top of the steps. If I am travelling, for example, with people, human nature being what it is -- travelling up, for example, York Street -- human nature being what it is, usually the other parties take the path of least resistance, or the shortest route. Their preference most times is to walk up the steps, and I have to go to another site and meet them at the top of the steps. So I am excluded from being part of my party. I am made to feel different, and I do feel different having to do that. Anyone who accompanies Mr. Brown will be stigmatized in the same way. [23] This raises a question of dignity. Mr. Brown: I feel that I should be afforded the same, equal opportunity to have access as other citizens at the same location -- at the same site, or something very close -- adjacent -- as a reasonable accommodation. Having to travel to a separate site is not a reasonable accommodation, in my opinion. If I am with other people, it is undignified. I am made to feel like a second-class citizen because I am not permitted to use the same facility as other citizens of Canada. This is the national capital of Canada. It is a symbolic area, as well. Mr. Brown feels that the current situation is discriminatory. His concerns extend to elderly people, people with children in strollers, and anyone who has difficulty climbing the steps. [24] Mr. Brown’s solution is simple. He feels that there should be an elevator at the base of the steps. If that is not possible, he thinks that an elevator immediately adjacent to the site would be acceptable, as long as you can see it from the base of the steps. He was accordingly willing to consider the use of the elevator at the north end of the Connaught Building. (ii) David Lloyd Rapson [25] David Lloyd Rapson was called by the Commission as an expert witness in accessibility and universal design. He was originally retained in October, 2000 and asked to look at a number of options. One was the possibility of using other locations. [26] Mr. Rapson’s background is in community planning. He also studied architectural technology and was trained in accessibility assessment. He has a breadth of experience in accommodation. He has done committee work for the Canadian Standards Association and contributed to a manual on the best practices in universal design. [27] Mr. Rapson served as the assistant director of the Universal Design Institute at the University of Manitoba. He chaired an access advisory committee for the City of Winnipeg and led a team of fifteen people in preparing an accessibility audit of downtown Winnipeg. I should also mention that Mr. Rapson broke his back in 1993, and has some problems with his legs. He uses a cane, so his consulting is informed by some of his own experiences. [28] Mr. Rapson testified that there has already been considerable work in developing a set of criteria that can be used to conduct accessibility assessments. There is an emerging discipline in the field of accessibility assessment. The discipline takes in a myriad of physical, psychological, sociological and public policy considerations. Some of these factors concern the process that is employed in planning, designing and constructing accessible sites. [29] The basic criteria employed in these assessments are found in the principles of universal design. Mr. Rapson referred to these principles as guidelines, though even that word seems too strict. They are more like a statement of aspirations, which is commonly relied upon, in planning, designing and developing physical environments that are free of barriers. The word barrier refers to anything that may impede people who want to make use of them. I have attached Mr. Rapson’s formulation of the principles of universal design in Appendix B. [30] In his testimony, Mr. Rapson made a distinction between accessibility and universal design. A. Accessibility is a function of compliance with regulations or criteria that establish a minimum level of design necessary to accommodate people with disabilities. For example, most building codes -- the national building code, the Ontario building code, the Manitoba building code -- usually have the minimums, This is the minimum that you can design for it. Universal design is more of an art and a practice of design to accommodate the widest variety and the number of people through their lifespans. The principles of universal design provide the more general framework in which specific issues of accessibility can be considered. [31] The accessibility issue has a legal and a technical side. Mr. Rapson described his task in the immediate case as follows: A. There were two basic questions: an expert opinion on how the location could be made accessible to wheelchair users; and to have sufficient information to enable the CHRC to determine whether the respondent had met its legal responsibility to accommodate wheelchair users to the point of undue hardship. The second question is problematic. The issue behind it, at least, is whether the Respondent has met its obligation to accommodate persons with disabilities under the Canadian Human Rights Act. This is a question that is reserved for the Tribunal. It would be an error to accept Mr. Rapson’s views as a legal opinion. [32] Mr. Rapson was entitled, as an expert in accessibility and universal design, to speak to the technical side of the question. There is not that much that anyone can say, in this context. The Respondent did not dispute the fact that the steps, as originally constructed, are not accessible. They were not designed in accordance with the principles of universal design and do not meet current standards. The contentious question is whether the NCC has rectified the situation. [33] Mr. Rapson is of the view that the York Street Steps do not meet the principles of universal design. They are not, in his view, accessible. The elevator at the Daly site does not rectify the situation. I have generally accepted Mr. Rapson’s opinion on these issues. I found his evidence thoughtful and measured. He understood the need to make reasonable compromises. (a) Mr. Rapson’s reports [34] Mr. Rapson made two reports. The first report was dated June 14, 2001, and was limited by the fact that he was not given any funding to visit the site. I think this was an error in judgement on the part of the CHRC, which was taking a real risk, in asking him to write a report without a physical examination of the site. I nevertheless accept that any deficiencies in the initial report had been made up by the time of the hearing. [35] Mr. Rapson had a series of photographs taken of the site. He also asked colleagues to inspect it for him. He spoke to a variety of people and tried to pull in as much information as he could. This included correspondence, site plans, and other documentary material. [36] The first report concludes that the steps contravene three of the guiding principles of universal design: equitable use; flexibility in use, and low physical effort. They did not meet the principles of universal design. The alternative routes were excessively long. There were also problems with the consultation process adopted in 1994. [37] Mr. Rapson nevertheless acknowledged that the site was challenging. The hill was too steep to permit the construction of a viable ramp, and an exterior elevating system was not appropriate. He accordingly proposed his own alternative.Mr. Rapson thought that the obvious solution was to make use of an elevator in the Connaught Building, immediately beside the steps. He felt that the NCC did not have a sufficiently encompassing consultation process with the adjacent building occupants in the Connaught Building. I agree with this conclusion. [38] The second report from Mr. Rapson is essentially a response to the Universal Accessibility Assessment Study prepared for the Respondent by Robertson Martin in July 2002. It contains his final conclusions. There are some differences in the two reports, but I think it is more important to focus on his testimony, which followed the outline of the second report. [39] Mr. Rapson made additional investigations after issuing the second report and made three or four visits to the steps. He measured the time it took to complete the various routes around the steps. He estimated that the trip to the top of the steps, via the Daly site, or around the U.S. embassy, was six to eight minutes. [40] Mr. Rapson also observed the pedestrian traffic. Mr. Rapson: There was a steady flow of people going up and down. I did one count for the eight minutes and it worked out to somewhere around 85 people, somewhere in that range, varying in age, varying in size -- families, single people. There was one family with a carriage with a young one in it, and they were bouncing their way down. There were a number of scooters that I saw traveling at the bottom. There was a young family, as I mentioned earlier, with a baby carriage that couldn't make it up the stairs, so they had to go around. It was the same for an elderly person in a manual chair with somebody pushing them. Q. You mentioned that someone couldn't make it up the stairs. Had they attempted to -- A. They were looking for a way to get up to the park. They were down by the Byward Market. The point is simply that the steps present a barrier to a wide range of people. [41] Mr. Rapson testified that it would be wrong to look at the site solely from the perspective of a person in a wheelchair. His concern was with anyone who was unable to climb the stairs. He also testified that there is no perfect solution. The best solution for one user might not meet the needs of other users. (b) Mr. Rapson’s conclusions [42] Mr. Rapson’s central conclusion was that the original design of the York Street Steps does not meet the principles of universal design. The steps are not accessible. The alternative routes were excessively long. It was therefore a matter of retro-fitting an inadequate design. This is always problematic. [43] Some of Mr. Rapson’s criticism concerned the lack of consultation. He suggested that there should have been a proper process of consultation in 1994, when the steps were designed. He agreed with a statement attributed to the architect for the American Embassy, who allegedly commented that this was a missed opportunity. I only repeat this comment because it captures Mr. Rapson’s view. [44] Mr. Rapson was firmly of the view that the disabled community, the public and any interested parties should all have had a say in what was to be done with the site. This is a fundamental aspect of universal design and the NCC had not done enough in this regard. The participants at the meetings that ultimately took place were not given a full range of options. They were essentially forced to make a choice between the options presented by the architects. [45] Nor was it a matter of dealing solely with persons who have mobility problems. The final design should accommodate persons with visual, hearing, and cognitive problems; it should accommodate persons of various heights, widths and ages. It should accommodate parents with children in strollers. Mr. Rapson recommended a signage strategy. There should be benches and rest stops placed in the area. [46] The NCC bridled at the suggestion that it was not committed to the principles of universal design. Mr. Rapson relented somewhat on cross-examination, and stated that he consulted the NCC’s Barrier Free Site Design Manual in preparing his reports. He agreed that it provided evidence of good intentions. His position nevertheless remained the same. The design of the steps did not meet the principles of universal design. [47] Mr. Rapson acknowledged the challenges presented by the site. The hill was high and steep. The site was tight: it was too narrow to allow for stairs and a proper ramping system. A stair platform lift would not be appropriate. Weather was a serious concern. The sociology of the area must also be taken into account. There are rough elements in the neighbourhood. Those who made use of an elevator might have legitimate fears about walking down a corridor, out of public view. [48] There were historical and cultural factors. Mr. Rapson described Ottawa as a showpiece of Canada. This must be taken into account. There is also the fact that the American Embassy is next door. The cost of any adjustments would have to be considered, as would engineering and security issues. The competing interests must be balanced. [49] The second report goes through the options in the Robertson Report. Mr. Rapson added the Connaught Building as an option. The first option in the Robertson Report was the status quo. This was unacceptable. Option 2, a stair platform lift, was unworkable. It would be open to the air and inclement weather. It would be cumbersome, since two lifts would be necessary. The manual operation of the lift would present a problem for people with disabilities. [50] Option 3 was the Connaught Building. The Connaught Building had level access at ground level and above, on MacKenzie Avenue. There was a ramp adjacent to the York Street Steps. The first report from Mr. Rapson suggests that the existing entrances, exits and elevator could be used. The second report suggests a new elevator. There was an elevator shaft at the ramp. This was the best option. There would have to be push button access and upgrades in the building to meet current accessibility standards. [51] I think the Respondents have overstated the fact that Mr. Rapson has never been in the Connaught Building. He had the floor plans, and if the matter did not go beyond that, it was because the Respondents were not willing to pursue it. Mr. Rapson was merely recommending that the building be considered. He accepted that there may be security concerns that would prevent the building from being used, and acknowledged that his proposal was a suggestion. [52] Option 3a was a vertical elevating device. Mr. Rapson thought that this was a feasible option but acknowledged that it would have to be located on the property of the NCC, presumably at the back of the site, beside the steps. This meant that the current retaining wall would have to be moved, an expensive and even awkward proposition. Mr. Brown asked about the possibility of constructing an elevator at another location on the site, but Mr. Rapson warned that there would be engineering problems. [53] Mr. Rapson was generally happy with the idea of an elevator. He was nevertheless concerned about the canyon effect that would be produced by locating it at the back of the site, beside a five or six metre retaining wall. The corridor leading to the elevator would be dark and aesthetically undesirable. He had additional concerns about the size and design of any elevator. He had concerns about vandalism, and general security issues. [54] The fourth option was to make use of the proposed elevator at the Daly site. Mr. Rapson felt that this was simply too far away. It did not meet at least two of the principles of universal design, which call for an equitable solution that requires low physical effort. He also thought that it would stigmatize those persons who had to use the alternative route. [55] Mr. Rapson thought the elevator at the Daly site was needed. But it did not resolve the problem at the York Street Steps, which needed on-site access. The Daly site would also stigmatize people who had to use the elevator. Mr. Rapson felt that this is a common problem with access. People with disabilities are unintentionally segregated from other people. [56] There is real symbolism here. This kind of issue goes to the heart of the legislation and the concept of equality that is enshrined in the law of the person. Compromises must be made. The practicalities of any situation must be taken into account; but so must the needs of dignity. People who cannot climb the steps should be accommodated, as much as possible, at the site. [57] Mr. Rapson took the position that it was not his place to substitute his views for those who had an interest in accommodation at the steps. The most appropriate solution could only be determined through the process of consultation. He was nevertheless satisfied that the Daly site did not provide access close enough to the steps. That seemed to leave an elevator, either on site or in the Connaught Building. He also felt that there might be ways of dealing with the security problem in the Connaught Building that were never explored. (iii) Barry McMahon [58] Barry McMahon has lived in Ottawa for 30 years. At one point, he had an audiovisual company at 61A York Street, in the ByWard Market. He is accordingly familiar with the York Street Steps and the surrounding area. [59] Mr. McMahon has post-polio mylitis. This affects the neurons in the muscles, which restricts the amount of activity that he can undertake. He has been using a wheelchair and a scooter in an effort to delay the advance of his condition. [60] Mr. McMahon has known the Complainant for 14 years. He nominated Mr. Brown to the Municipal Advisory Committee on Disability in 1996, while he was chairing the Committee. The Committee had an extremely broad mandate and dealt with any matters within the municipality that raised disability issues.It is now mandatory under provincial legislation that cities in Ontario have such a committee. [61] The selection process for the Municipal Advisory Committee is open. Members are sought through the media, through City Council, through the members of the Committee, and the City Clerk. There is another committee that recommends candidates for membership. They are appointed by the mayor, by motion in council. [62] The process at the Committee was relatively straightforward.The planning Committee would submit individual site plans to the Advisory Committee for recommendations.There was a formal distribution sheet in the planning department. They did not deal with the interior of the building unless it was a municipal site. [63] Mr. McMahon resigned from the position of chair in the middle of 1998. Mr. Brown was elected as the new Chair and remained in that position until the City of Ottawa was amalgamated. Mr. McMahon resigned from the Advisory Committee in 2003. He was the interim chair of the Accessibility Advisory Committee of Ontario at the time he testified. [64] The history of the matter really goes back to 1998, when it was brought to the attention of the Municipal Advisory Committee that the York Street Steps were being redesigned. In January 1999, the Committee formed a subcommittee to deal with the project. The Committee felt that the existing steps were a barrier and did not want to see the barrier duplicated. There was a lot of anger and frustration. The Committee felt that the original design of the steps was flawed. [65] The Committee was apparently told that the estimates put the cost of the stairs at 38 thousand dollars per step. They felt that this should have been sufficient to deal with the access issue. There were a number of letters. Mr. McMahon thought that Jim Watson, the Mayor, wrote to the Chairman of the NCC. [66] The minutes of the Accessibility Advisory Committee from August of 2002 refer to the meeting. Giles Warren and Danielle Vincent reported to the Committee as a whole. Mr. Warren reported to the Committee that the only solution offered by the NCC was the elevator at the Daly site. The feeling of the Committee was that the NCC had already decided that access would be provided at the Daly site. This was a fait accompli and was not open to negotiation. [67] Mr. McMahon felt that the Daly site was not a viable solution. It was simply too far away. The Daly site doesn’t solve the problem at all, he testified. You might as well go around the block. Access should be provided immediately at the foot of the steps. The Committee felt that the Daly site was a token solution. There was a general feeling that it was futile to participate further in the process. Mr. McMahon now realizes that this may have been a mistake. [68] Mr. McMahon testified that he sent an email to the U.S. Architects and Transportation Barriers Compliance Board in Washington D.C on March 19, 1999. He advised them of the situation, on the basis that they had provided part of the infrastructure for the American Embassy. He received a response from the Compliance Board in April, with a copy of a letter from someone in the Department of State saying that the matter was out of their jurisdiction. [69] Mr. McMahon clearly felt that the problem lies in the design of the Steps. The elevator at the Daly building does not address this problem at all. It merely diverts the problem. The other side of the Daly site is nowhere. There is a tremendous amount of congestion in the area. There are street kids, homeless people, beggars and vagrants in the area. The corner of Sussex Drive and Rideau Street is particularly bad. [70] Mr. McMahon feels that the existing situation is intolerable. He said it is amazing how much inconvenience the NCC is causing to people at the site. It is not simply people in wheelchairs. The same problems confront women with toddlers in strollers, elderly people, people who are overweight, people with visual disabilities. If there was an alternate way of negotiating the steps, he believes that it would be heavily used. [71] Mr. McMahon thought that the main alternative would be an elevator. The transit way has had elevators for 10 years. There could also be a funicular. He testified that people should be offered an alternative at the bottom and the top. The most convenient location would be beside the Connaught Building, below the landing on the MacKenzie Street side. He stressed the importance of maintaining visual contact between people who are travelling together and felt that an elevator on the site would be the best solution. [72] There is a question of inclusion here. Mr. McMahon stated that splitting up at the steps, with the intention of rejoining his party at the top of the stairs, accentuates his disability. The steps are a barrier. A person’s disability comes to the fore and becomes predominant when faced with a barrier. The goal in accessibility is to remove these barriers. The purpose of universal design is to incorporate disabled persons seamlessly into the public and society. (iv) Giles Warren [73] Giles Warren testified from Hamilton. He has had polio since childhood and uses a wheelchair. He lived in Ottawa for forty years and was a member of the Municipal Advisory Committee on Disabilities from 2000 to 2003. He was vice chair by the time he left. Mr. Warren did not spend much time in the area of the York Street Steps. He was nevertheless aware of the issues surrounding the steps from his committee work. [74] Mr. Warren was the Chair of the subcommittee on site approvals. He was asked to go to a meeting in July, 2002. The meeting was July 23 at the headquarters of the NCC. Mr. Warren did not know the other people at the meeting, other than Danielle Vincent. Mr. Warren says that he went to the meeting with an open mind. The Accessibility Study commissioned by the NCC--the Robertson report--was neutral. [75] When Mr. Warren got to the meeting, however, he discovered that the Mr. Martin, the consulting architect, was already in favour of using the proposed elevator at the Daly site. Security had become a major concern. The overall message was simple: the preferred alternative was to install a public elevator at the Daly Building. Mr. Warren says that the other options were never seriously addressed. It was a window dressing exercise. [76] The minutes of the meeting prepared by Mr. Martin demonstrate that Mr. Warren agreed that the Daly site was the best solution. Mr. Warren discounted this. He says that he only agreed because there were a limited number of options on the table. None of the options addressed the real problem, which was the original design of the steps. [77] Mr. Warren’s report to the Municipal Advisory Committee uses the same words. The minutes of the Committee describe the meeting as window dressing to satisfy the concerns of the CHRC. There was an informal discussion of the situation at the Committee, after which the matter was left hanging. The Committee basically left it to the CHRC to deal with the matter. [78] Danielle Vincent from Disabled Persons Community Resources was also at the meeting. Mr. Warren testified that she shared his view that the meeting was window dressing. Ms. Vincent did not testify so the statement is hearsay. I accordingly think it would be wrong to place any weight on it. [79] Mr. Warren was accommodating on cross-examination. He was willing to accept that the NCC was within its rights to assume that the Municipal Advisory Committee supported the Daly-site option. He recognizes that the NCC may not have appreciated his objections. He realizes, in retrospect, that he should have gone back to the planners and architects and expressed his views to them. [80] This does not change his view of the situation. Mr. Warren was not happy with any of the alternatives proposed in the Robertson Report. He thought the proposed location for an elevator at the steps was impractical. The alleyway between the Connaught Building and the steps was dangerous. He was concerned with vandalism and with the threat posed by vagrants in the area. This included the Daly site. [81] Mr. Warren rejected the idea that the elevator at the Daly site would provide equal access. He felt that it was like asking disabled people to use the back door. He suggested that the use of an alternative route might be justified on the same separate but equal rationale that was used to justify segregation. He remembered signs directing blacks to different washrooms or rear entrances. [82] Mr. Warren also thought the extra distance to the Daly Building was a significant obstacle. It was just as easy to walk around the block. B. Evidence For The NCC (i) Gérald Lajeunesse [83] Gérald Lajeunesse is the Chief Landscape Architect for the NCC. He has been working for the NCC since 1977. He became the project director for Confederation Boulevard in 1988. [84] Mr. Lajeunesse testified that the NCC is committed to universal access and published a Barrier-Free Site Design Manual in 1995. The manual provides a tool for people preparing projects under the purview of the NCC. The major part of the process however consists of consultation. The NCC introduced a Universal Access Policy in 1996, which applies to its sites, buildings and services and to those which it leases. There is an internal committee, which performs assessments for government departments and monitors developments in the area. [85] One of the major elements in the NCC’s plans for the National Capital is Confederation Boulevard. The Boulevard runs for seven and a half kilometres and includes the ceremonial route to the Governor General’s residence. The frontage along Sussex Drive and MacKenzie Avenue, and the York Street Steps, are considered part of the Boulevard. [86] Confederation Boulevard is designed to accommodate large gatherings of people and allows lingering. The sidewalks are generous. The idea is to give the pedestrian priority. Mr. Lajeunesse testified that Major’s Hill Park might be considered an exception to the general plan. The NCC tries to minimize activity in the area, to protect the vegetation, which is apparently on thin soil. The primary pedestrian route is from the Parliament Buildings on Wellington Street to Rideau Street, and then along Sussex Drive to York Street, and into the Byward Market area. [87] Mr. Lajeunesse took over the York Street Steps site in 1989. Alex Kilgour, the project manager for the York Street Steps, reported to him. There was an insignificant set of stairs at the site. The area was derelict. They had already decided on a grand stairway, which would provide a strong visual connector between lower and upper town. [88] This is where history and aesthetics enter into the matter. The York Street Steps are part of a view corridor, an uninterrupted view-shed between lower and upper town. They are a visual link between the town—the Byward Market—and the crown, which takes in the Chateau Laurier and the back of the Parliament Buildings. I accept the NCC’s view that it is important to protect the view-shed. [89] The NCC was aware of its obligation to provide access at the proposed steps. The architects investigated the possibility of providing ramps. The grade was too steep, however, and there would be a problem with switchbacks. They also looked into the possibility of providing an elevating device. The problem was that an elevator adjacent to the steps would have created a tunnel. This was the wrong feeling. The physical site was too restricted to consider other options. [90] There were other issues. There was virtually no retail along Sussex, so there was little activity at night. This created safety concerns. There were inappropriate activities at the York Street Steps. There was also a new development at the Daly site. The NCC wanted to take advantage of it and eventually reached the conclusion that it was the only realistic site for an elevator. [91] Mr. Lajeunesse testified that there was no serious discussion of the Connaught Building. The problem was security. They recognized that things could change. Jean Piggott, the previous Chair of the NCC, had recommended that public buildings on Confederation Boulevard have a public face. There should be some public access. So ideally the Connaught Building would be open to the public in some fashion. [92] The Daly site was more accommodating and more inviting, if a passageway was needed. There were no dark spots. It was a controlled environment, and offered better security. Mr. Lajeunesse testified that you have to take advantage of opportunities when they arise. The NCC owned the land at the Daly site and was in a position to demand concessions from the developer. There were negotiations concerning the construction of an elevator at the site. The NCC insisted that it meet universal standards. [93] There was a dispute about the reasons behind the position taken by the NCC when the steps were originally designed. The CHRC suggested that the NCC preferred the Daly site because the developer would bear the costs. It also suggested that aesthetics entered into the decision. Mr. Lajeunesse equivocated, and then rejected the suggestion that any of the alternatives were rejected on the basis of costs or aesthetics. The review of the matter after the complaint was filed looked at other concerns. [94] There were two rounds of consultations before the steps were built. One included a meeting with the Federal Interdepartmental Technical Committee on Accessibility, and another with representatives of the Disabled Persons’ Community Resources Group. There were discussions with the CHRC and another round of consultations, after Mr. Brown laid his complaint. This culminated in the meeting that was held in 2002. [95] During these consultations, the CHRC sought to obtain information about the Connaught Building. A letter to Mr. Lajeunesse dated October 24, 2000 asked for details of the Connaught Building, including the service entrance area, the front entrance area, and floor plans. [96] Mr. Lajeunesse made inquiries and eventually received a cursory letter from Raymond Charette, a property and facility manager for Public Works, dated September 13, 2001. The letter responds as follows: The high security requirements of Canada Customs and Revenue Agency’s Headquarters at the Connaught Building and prohibitive cost of altering this heritage building to accommodate a public elevator precludes us from opening this building for public access between Mackenzie Avenue and Sussex Drive. This was essentially the final word on the subject and foreclosed any further discussions. [97] The NCC set out its position in a letter to the CHRC on October 3, 2001. The substance of the letter is as follows: During the initial design phase for the York Steps, the NCC did not pursue the option of providing universal access through the Connaught Building because [it was designated] as a high security federal building and could not, as such, be promoted as a public building. The hours of operation for the Connaught Building are very restrictive, while the hours of operation for the building proposed at the Daly site would provide the flexibility that could accommodate a universal access between MacKenzie and Sussex. Therefore, the [National Capital] Commission has identified an equitable, alternative, contiguous route through the Daly Site, given the fact that both the Connaught Building and the US Embassy are high security buildings. The Commission strongly objects to the statement made that it does not clearly understand Universal Design and Access and that appropriate training session(s) be organized for its staff. The NCC stands by this position. [98] The NCC nevertheless took a second look at the situation after Mr. Brown filed his complaint. There was apparently a mediation. The NCC commissioned an Accessibility study from Robertson Martin, which was referred to in the hearing as the Robertson Report. This report quickly disposes of any idea that the buildings adjacent to the site could be used to provide access. Buildings adjacent to the York Staircase are high security buildings and therefore utilization of them for elevators, etc., is impossible. Also, hours of access would be restrictive. The report also notes that the RCMP has security arrangements in the area. [99] It appears that Mr. Martin, the consulting architect, chaired the meeting on July 23, 2002, which Mr. Warren attended on behalf of the Municipal Advisory Committee. Mr. Lajeunesse also had a leading role. Mr. Lajeunesse took the position that there was a consensus that the Daly site was the best. I accept his sincerity, in saying this. (ii) Jerrold Corush [100] Jerrold Corush is a landscape architect. His firm was asked by the NCC to assist in the design of the U.S. Embassy and the York Street Steps in 1994. The Embassy was designed twice as a result of the security issues that arose as a result of the Oklahoma bombing. [101] Mr. Corush testified that they looked into the issue of access. All of the alternatives seemed problematic. They rejected the idea of a ramp. There would be too many turns and the number of switchbacks seemed rather onerous. The people using the ramps would run into the people going up and down the steps. [102] The possibility of a funicular was investigated. A funicular is essentially a box on wheels. This would require a conductor. There were operational and safety concerns. They considered an escalator, which would have to be inside. That would require the construction of a building. There would be problems with maintenance. [103] There was discussion of an elevator. There were two basic locations. The first was down the alley beside the steps, which was used by truck traffic to and from the Connaught Building. This was problematic. The trucks used the entire space for turning. They were banging the walls as it was. The area between the steps and the Connaught Building was also a dead space. There would not be enough people to ensure the safety of the area. [104] The architects also considered the possibility of an elevator tower on Sussex, with a catwalk leading to Mackenzie. This was rejected for visual concerns—it affected the porosity of the view—and because it raised concerns about safety. Weather was another problem. The catwalk would be exposed and yet isolated from the public. It follows that there were design and safety problems with both of the proposed locations for an elevator. [105] There was an extensive discussion of these issues. The manner in which an elevator would be operated was also considered. Would there, for example, be key cards? This would be awkward. Mr. Corush felt that an elevator should probably be manned. Surveillance was discussed. The CHRC submitted that costs entered into the evaluation of all of these issues. [106] I think the Respondent has intentionally underplayed the importance of aesthetics in making these decisions. Mr. Corush testified that the architects wanted to maintain the visual corridor down York Street and up the steps, leading to the library of Parliament. This provides a spatial connexion between the town and the crown. They also wanted a set of stairs that matched the embassy. [107] In the end, none of the on-site solutions seemed satisfactory. They accordingly examined what was available off-site and concluded that the pedestrian traffic coming out of the market had two fundamental destinations. One was the Chateau Laurier and Parliament Hill; the other was Major’s Hill Park. They needed a route to each. The second route was already there: if necessary, people could walk around the American Embassy, which would take them to the north east end of the park. The first could be supplied by the Daly site. [108] That was where the matter was left. There was no real process of consultation and the architects relied on their own judgement, in recommending the final design. They were not completely happy with the situation. Mr. Corush acknowledged that the distances involved in using the alternative routes are significant, particularly for someone in a wheelchair. He recognized that disabled people would be displaced by the York Street Steps. I think this implicitly acknowledges that there is separate treatment. (iii) Robert Martin [109] Robert Martin was retained by the NCC in April 2002 to study the York Street Steps. This was in response to Mr. Brown’s complaint and the CHRC’s investigation of the matter. Mr. Martin’s firm, Robertson Martin Architects, has a specialty in universal access. They have done building reports and accessibility audits for the NCC. [110] Mr. Martin did an extensive site review and prepared a report entitled Universal Accessibility Assessment Study: York Street Steps. The report is dated July 2002 and contains a number of appendices. Appendix B lists seven principles of universal design, which are in keeping with the principles set out in the Rapson reports. Mr. Martin testified that these principles constitute the best practice in the area. [111] The consulting group that prepared the report had a wide range of materials relating to the York Street site. This included the CAD (Computer Assisted Drawing) files used in constructing the steps. They made a physical examination of the site. They did class D cost estimates for an elevator, which came in at 427,000 dollars. This class of estimates is rough, at best, with a high range of error and an expected range of plus or minus 20 percent. [112] Mr. Martin described the purpose of the Robertson Report as follows: Mr. Martin: I think there was a real sense that the steps had been constructed and that this was a second opportunity to review all of the existing installations and to examine whether there might be new technologies or devices that hadn't been present when the steps were being designed and constructed that perhaps the NCC had missed and that we might identify in our report. It is clear from the evidence that the NCC wanted to preserve the original design of the steps. I think this is probably one of the reasons why the proposed location for an elevator at the site was beside the steps. It was a matter of finding some kind of add-on, which would solve the problem of access without disrupting the original design. [113] The NCC did not merely ask Mr. Martin to look into re-fits, however. He testified that one of the major purposes of the Robertson Report was to consult the community and the persons who needed access. Mr. Martin: The goal was not only to look at all of the existing site issues, but also to involve community and stakeholder groups in this process so that there would be both solicitation and receipt of feedback as to the options identified and whether they made sense. We approached a number of community groups and asked them to provide representatives for the study. The quite direct briefing from the NCC was to be as inclusive as possible to get this orchestration because the study would not be as useful if it wasn't done with the full participation of these groups. The NCC was adamant about this aspect of the process. [114] Mr. Martin’s plan in writing the report was to determine what options were realistically available, and identify the advantages and disadvantages of each. This included various platform lifts and an elevator, both on and off site. He would then present these options to the stakeholders and obtain their views. The final report would take their views into account. [115] The CHRC made much of the fact that the draft report recommended that an elevator at the steps would be the best way to provide access. There was an email memo from Danica Robertson to Sherry Berg at the NCC, dated 1:37 p.m. June 17th. It states that an elevator at the York Street Steps would be the best option. Ms. Berg responded at 4:39 p.m., the same day, with a request that the Daly site be added to the options listed in the report. [116] Mr. Martin testified that there was a security problem. They accordingly took a look at possibilities along the entire block and discovered that there was a lease agreement with the developers of the Daly site to provide an elevator. There would be passive security available at the site. There would be a concierge. There would also be residents in the area. [117] The draft report was circulated to a list of contact groups. This was followed by the rather controversial meeting on July 22, 2002. It seems to me that the meeting was rushed. The material was sent out on July 18th. Mr. Martin was apparently advised by Sherry Berg not to invite Mr. Brown, since he was a party to the proceedings before the Tribunal. Nor was he informed that the meeting was taking place. [118] There were five representatives from the NCC at the meeting, along with two consulting architects. There was also a representative from the American Embassy. I think that this official presence had an effect on the other participants. They were outnumbered seven to four. The evidence nevertheless suggests that two of the outside participants were happy with the proposed solutions. [119] The evidence of Mr. Martin was that the individuals at the meeting were polled. Each person at the meeting was asked to give their views. This seems to have included at least some of the representatives of the NCC. Mr. Martin felt that there was a complete consensus. This assessment leaves too much out. Mr. Warren, for his part, described the entire exercise as window dressing. This may be too harsh, but it seems clear that the results were pre-ordained. [120] There was a general discussion of the options identified in the draft report. The proposed elevator would require access along the side of the retaining wall, some distance from the street. This would create a dark alley feel. There was a debate during the hearing as to the possible locations of the proposed elevator. There is apparently a basic rule that the entrance to an elevator should be provided at the base of the accompanying stairs. Mr. Brown was upset that this was not considered. [121] The problem from a security perspective was the length of a walkway. It would have to be covered and heated to deal with the weather. This would attract street people, who naturally seek the comfort and protection of an enclosed space. This presents a serious concern with safety however, particularly in the case of the disabled community, which is more vulnerable than other segments of society. Mr. Martin summed up the attitude at the meeting in the phrase: you can put an elevator there but I wouldn’t use it. [122] In the end, Mr. Martin thought there was overwhelming support for the Daly-site proposal. He prepared minutes after the meeting and circulated them. He asked for corrections. None were requested. There were apparently some further communications, but none that changed the consensus at the meeting. Mr. Martin did not feel that any further input was necessary. [123] Mr. Martin testified that there would be many internal problems with the use of the Connaught Building. There are stairs that would have to be negotiated on both the ground and the upper floor, in order to access the elevator from the street. But he was fair about the matter. The possibilities were never really investigated. [124] After the meeting, Mr. Martin wrote up his report. I have already gone through the options that it identifies, in reviewing the evidence of Mr. Rapson. There were some changes. The Daly site was added and was ultimately recommended as the best option. There were minor changes. The following line was added, in para. 2.2: Mechanical options had been ruled out due to high construction and maintenance costs as well as vandalism concerns. This was added as a result of the conversation at the meeting. [125] There was another change. There are security facilities for the American Embassy in the area. The draft report suggested that the presence of the RCMP in the general vicinity would also provide security at the steps. Mr. Martin was later advised that the police were not there to provide security for the steps. The report was accordingly changed. [126] The parties disagreed about costs and aesthetics. Mr. Martin acknowledged that aesthetic considerations came into the matter. None of the options were discredited on that basis, however. He minimized the significance of costs. This was met on the other side with the observation that the NCC chose the cheapest alternative. Which was to do nothing at all. The York Street Steps remain exactly as they were. [127] I am satisfied that cost was a significant factor. The report refers to the need to provide universal access without placing an undue hardship of financial burden on the NCC. The least imperfect, while still extremely problematic, option for providing on-site Universal Accessibility would be to reconstruct the south wall of the stair in a new location to allow a dedicated ramped access to an elevating device. This would involve considerable redesign of the stair[s] and the structure, at great cost to the NCC, and result in the introduction of elements that may conflict with site [i.e., sight] lines from the Byward Market to Parliament Hill. Considering that there will be a 24-hour accessible elevator at the near by Daly site, the overall construction cost for moving the wall and installing an elevating device, as well as the destruction of the aesthetic symmetry of the stair and site lines to Parliament Hill, could be considered extreme for the anticipated end use. The end result may be highly unappealing for users. I think it is clear that cost and aesthetics were significant factors. [128] Mr. Martin said that the only option that was not feasible from a cost perspective was to completely rebuild the stairs. The implications are troubling. If this is just another way of saying that access cannot be provided, it is not a satisfactory answer. The NCC cannot build the steps without access, however, and then simply argue that the design of the steps make it too expensive to provide it. [129] Mr. Martin was not happy with the final solution but says that it was the best that could be done in the circumstances. Mr. Brown pointed out that Mr. Martin was not aware of the slope between the York Street Steps and the Daly site. The difference would only be significant to someone with a disability. He clearly felt that Mr. Martin failed to appreciate the significance of the distance between the York Street Steps and the Daly site. (iv) Éric Hébert [130] Éric Hébert has been an architectural assistant and an accessibility advisor, un conseiller en accessibilité with the NCC for 17 years. He is familiar with the principles of universal design and reviews site plans for accessibility issues. His job is to ensure that there is enough room for proper wheelchair access. He also conducts workshops on accommodations for people with various disabilities. [131] Mr. Hébert is a member of the Inter-Ministerial Committee on Accessibility. He is also a member of an internal NCC committee, which deals with physical, hearing and visual disabilities. The internal committee deals with the accessibility issues that arise in the design and/or renovation of buildings. The NCC asked him to evaluate access at the York Street site in 1993 and 1994, and report on the possibility of a ramp. He was not involved in the original design of the stairs. [132] This led to a meeting on November 22, 1994, between NCC and Public Works to discuss the York steps. Mr. Hébert testified that security was foremost. The minutes of the meeting suggest otherwise, however. They state that: … mechanical options had been ruled out due to higher initial construction costs and the expense of ongoing maintenance and operation as well as the financial implications of renovation and maintenance in the long term. This suggests that expense was the major concern. There is a letter from the NCC in 1999 that would support this understanding. The minutes also make it clear that someone raised the possibility of using the Connaught Building. This was never followed up. [133] Mr. Hébert then inspected the site. He had another meeting on December 13, 1994, with two persons from the Disabled Community Resource Centre and four from the NCC. Mr. Hébert advised the meeting that the slope of the hill made it very difficult to provide a ramp. The ramp would need a slope of 8º and be approximately 150 m. in length. Both of these factors would present a challenge for anyone in a wheelchair. [134] Mr. Hébert said that there were other problems. The ramp would have to run against the flow of pedestrian traffic up and down the steps. It was not a viable option. The problem was that this meant there was no access. Mr. Hébert wrote a memo to Mr. Kilgour, stating that alternative access would have to be provided at the steps. The memo says that the site should be totalement accessible. Les parcours alternatifs aux escaliers de la rue York permettra donc B toute la population de jouir de ce site. [135] There were concerns about security, however, particularly in the alley way between the steps and the Connaught Building. Part of the problem comes from the fact that the elevator is an enclosed space. It is easy to hide things in such a space. There was a discussion of whether a transparent elevator would pose the same threat to safety. Mr. Hébert said that these concerns arose after the Oklahoma bombing. He was later corrected and thought it was another bombing that prompted these concerns. It does not matter. There was a change in thinking. The concerns were there. [136] There were additional concerns with vandalism and with congestion in the narrow passageway between the building and the steps. There were trucks turning in the area. There would also be a problem at the top of the elevator, since it would require persons in wheelchairs to cross the flow of pedestrian traffic. The space for an elevator was very limited. But of course the CHRC says that the space was limited because of the design of the steps. [137] Mr. Hébert testified that the decision not to provide an elevator was ultimately made on the basis of security. It was impossible to have 24-hour security at the site. Mr. Hébert felt that this was an important consideration, since persons who cannot climb the stairs are more vulnerable than other persons. Mr. Brown took issue with this in cross-examination. He is an ardent believer in self-determination, a reference to the right of the disabled to make their own decisions in these matters. Mr. Hébert responded that the obligation of the NCC to protect the public takes precedence over the right of self-determination. [138] Mr. Hébert said that the developer who took over the Daly site suggested that an elevator at that site could be used as an alternative means of access. There was a discussion of routes and the flow of pedestrian traffic in the area. Mr. Hébert argued that an elevator at the York Street Steps would primarily service Major’s Hill Park. Traffic to the Chateau Laurier or Parliament Hill would be handled more effectively at the Daly site. [139] Mr. Hébert was visibly uncomfortable in the witness box. He has loyalties to the NCC; but he also recognized that the York Street Steps simply do not accommodate those people who cannot climb the stairs. He agreed on cross-examination that persons with disabilities should be integrated into society. They should not be segregated. He recognized that the stairs divide people from each other. (v) Katie Paialunga [140] Katie Paialunga is employed as the Executive Director of the Independent Living Centre. The Centre provides support for persons with disabilities who live on their own. It has a clientele composed of persons with multiple disabilities, rather than persons with specific mobility problems. The Centre is often consulted by government and social organizations with respect to issues concerning persons with disabilities. [141] Ms. Paialunga is paraplegic and uses a wheelchair. She has done accessibility audits and is familiar with the principles employed in the process. The NCC asked for her advice on the York Street Steps after Mr. Brown lodged his complaint with the CHRC. She attended the meeting on July 23, 2002, in her capacity as Executive Director of the Centre. [142] There was a dispute about the appropriateness of consulting with the Independent Living Centre, and Ms. Paialunga in particular. Mr. Brown made the point that the Independent Living Centre is not an advocacy group. Nor does it have a particular expertise in mobility restrictions. Ms. Paialunga agreed that she was not an advocate. She also agreed that she did not attend the meeting as a representative of the disabled community. She was simply offering her opinion, as an informed person, who had a good working knowledge of the needs of persons with disabilities. [143] Ms. Paialunga felt that her participation in the meeting would come within her normal range of duties. Mr. Brown cross-examined her on this and clearly felt that she was there on her own. She did not discuss the matter with the Board of Directors until the final Accessibility Report came out and she found out that she would be testifying at the hearing. [144] The minutes of the meeting held on July 23rd were put into evidence through Ms. Paialunga. She stated that the purpose of the meeting was to choose which of the options in the draft Accessibility Report was the best. The options were presented by Mr. Martin. All of the options were discussed and there was a consensus, after the discussion, that the Daly-site option should be recommended. Ms. Paialunga did not feel that Mr. Martin or any of the official participants favoured a particular option. [145] The biggest concern was with safety. Everyone felt that the Daly site was the best site from this perspective. There were problems with the construction of an elevator at the steps. There were trucks. There was a dark alley way. Ms. Paialunga testified that she would not be comfortable going down the alley at night. She felt that a person could be trapped. She also had concerns about snow removal and the use of an outdoor elevator in freezing temperatures. [146] There was an additional issue with respect to the use of the service ramp beside the Connaught Building, where the proposed elevator would be located. Ms. Paialunga felt that it was degrading to put the access for disabled persons in a service entrance. Mr. Brown countered that he would rather have access at the service ramp than go down the block and around the Connaught Building. He described this as a question of self-determination. [147] Mr. Brown also cross-examined Ms. Paialunga with respect to the differences among those who have disabilities. He drew her attention to the extra effort that would be required of a quadriplegic, like himself, in negotiating his way through the Daly site and back up the other side to the top of the steps. Ms. Paialunga agreed that the level of effort required in using an alternative route was one of the major factors that should be taken into account in providing access. [148] Mr. Vigna cross-examined Ms. Paialunga for the CHRC. He referred to the minutes of the meeting, which suggested that Mr. Martin began by summarizing the various options and advising the participants that he felt the best option was the Daly site. The discussion went on from there. Ms. Paialunga felt that the minutes were misleading. She resisted Mr. Vigna’s suggestion that the Daly site was presented as the best solution. [149] There was examination with respect to the precise order of what occurred at the meeting, which I do not propose to discuss. Elizabeth Norris, a representative from the Canadian Paraplegic Association, apparently suggested that the consultants had already concluded that the Daly site was the best option. This is backed up by the rest of the evidence. The testimony of Mr. Corush, Mr. Lajeunesse and Mr. Hébert makes it clear that the NCC and the consulting architects were already in favour of the Daly site. [150] It was probably inevitable that the position of the NCC would find its way into the meeting. I accept the CHRC’s position that the minutes and the Accessibility report make it clear that the Daly site was presented as the preferred option. There were nevertheless questions regarding the details of the various proposals. These questions were sincere and inquiring. There was an exchange of views. [151] Ms. Paialunga acknowledged that expense was an issue. So were aesthetics. Her real concern, however, was with security. She said this was the decisive factor in recommending the Daly option. It was also the primary consideration in rejecting the installation of an elevator in the corridor between the existing steps and the Connaught Building. The participants at the meeting discussed the possibility of using the elevator in the Connaught Building, but it was with conditions attached, since it was assumed that a security guard would have to come down and unlock the door whenever someone wanted to use the elevator. C. Evidence For Public Works (i) Idelle Matte [152] Idelle Matte was called by Public Works to testify as to security issues regarding the site. She is the Corporate Security Director for Public Works and is responsible for the physical security of all leased government buildings in Canada. Ms. Matte testified that they have about 2800 buildings. They manage about two thousand of them. [153] Ms. Matte is trained as a Security Analyst. She had a 3-week security course with the RCMP and has received training in physical security. She has a certificate from the American Society for Industrial Security and a diploma from Algonquin College. She was contacted by Raymond Charette, the property manager for the Connaught Building, after the complaint was referred to the Tribunal, and asked to do a security analysis. [154] On April 29, 2004, Ms. Matte and Mr. Charette went through the Connaught building and did the analysis. They paid particular attention to the elevator in the north end of the building, which goes to the Minister’s office. There were concerns with the security at this end of the building after the construction of the American Embassy. The building was not built to blast mitigation standards. Blast mitigation refers to the fact that a building can withstand an explosion (an external blast) without coming down. There was also a concern with the protective glazing on the windows of the building. [155] There are four security readiness levels for federal government facilities. These levels were brought in after the events of Sept. 11th, 2001. Security readiness level 1, the minimal standard, would require controlled access at the entrances of the building. It would also require identification. Level 2 would require guards at the entrances and visible identification. Visitors must be escorted. Mail must be scanned. [156] The Connaught Building is at level 2. This is the same as the Parliament Buildings. Ms. Matte noted that the building is a Mission critical building. It is also a heritage building. This increases any concerns. In theory, at least, members of the public who used the elevator in the Connaught Building, would have to be signed in and escorted through the building. [157] There are nevertheless different security zones. There may be, in ascending order, a public access zone, a reception zone, an operational zone, a security zone and perhaps a high security zone. This could conceivably have a bearing on the use of the elevator. [158] The memo prepared by Ms. Matte contained comments on the use of the existing elevator. It does not comment on the possibility of building another elevator. She nevertheless says that her comments would be the same, if the same elevator shaft was used. III. Law [159] The present case raises a number of legal questions. These questions need to be answered before determining whether the case has been substantiated. They are also relevant on remedy. A. Are the York Street Steps a facility or service?[160] The first question concerns the wording of section 5 of the Canadian Human Rights Act, which reads as follows: 5. It is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the general public a) to deny, or to deny access to, any such good, service, facility or accommodation to any individual, or b) to differentiate adversely in relation to any individual, on a prohibited ground of discrimination. 1976-77, c. 33, s. 5. The NCC argues that the York Street Steps are none of these things. It submits, in particular, that a set of stairs is not a service or facility. The Steps accordingly fall outside the ambit of the Act. [161] I do not think, for myself, that it is necessary to go into the definitions of these words. I agree with Mr. Harnden that it would be wrong to describe the physical steps as a service or facility. That does not end the issue, however. Section 5 of the Canadian Human Rights Act refers to the provision of goods, services, facilities or accommodation, and it is the act of providing these things that comes within the scrutiny of the Act. [162] The legal issue on the wording of the Act is whether the NCC is providing a service in constructing and maintaining the steps. I have no doubt that it is. If the steps themselves are not a service, they provide one. This service consists of giving physical assistance to those who want to traverse the hill between Sussex Drive and MacKenzie Avenue. [163] The NCC is accordingly providing the steps, which at least linguistically provide the service. This is a continuing act, which comes within the natural ambit of section 5. The service in question is customarily available to the general public. It follows that the Act applies and the NCC is prohibited, as the custodian of the steps, from differentiating adversely in relation to those who have disabilities. B. Section 15 [164] The usual defence to an allegation that a Respondent has failed to provide accommodation arises under section 15(1)(g) and 15(2) of the Canadian Human Rights Act. The former provision reads: 15. (1) It is not a discriminatory practice if (g) in the circumstances described in section 5 or 6, an individual is denied any goods, services, facilities or accommodation or access thereto … and there is bona fide justification for that denial or differentiation. The allegation is that the NCC has denied the Complainant access to the service provided by the York Street Steps. [165] Section 15(2) elaborates upon the meaning of a bona fide justification. (2) For any practice mentioned … in paragraph (1)(g) to be considered to have a bona fide justification, it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost. The practice in question is the construction of the York Street Steps without the provision of access for those who cannot climb the stairs. This practice has a bona fide justification if the provision of access would impose undue hardship on the Respondents, considering health, safety and cost. (i) Are the factors in s. 15(2) exhaustive? [166] There are two specific questions that need to be answered in the present case. The first is whether factors other than health, safety and cost can be consulted in determining whether the provision of access would impose an undue hardship on the Respondents under s. 15(2) of the Canadian Human Rights Act? I think the answer is yes. The factors listed in the subsection are not exhaustive. [167] The Superior Court of Québec dealt with the same question in Syndicat des employées et employés professionnelles et professionnels de bureau, section locale 434 (FTQ) c. Gagnon, [2005] J.Q. no 9368. There, the court was dealing with an employee who had been dismissed, in part because of medical absenteeism. The employee filed a grievance, relying expressly on the provisions in section 15 of the Canadian Human Rights Act. [168] The facts of the case are not particularly helpful. At para. 39 of the decision, however, Justice Marcelin found that the list of factors in s. 15(2) is not exhaustive. Le paragraphe (2) de l'article 15 est descriptif et non limitatif. Il peut y avoir d'autres critères qui permettent une exigence professionnelle justifiée. The decision of Justice Marcelin seems to rest on the simple observation that it is possible to conceive of legitimate employment factors—that is to say, bona fide occupational requirements— that do not come under the heading of health, safety and cost. [169] A similar question arose in Dominion Colour Corp. v. Teamsters, Local 1880 (Metcalfe Grievance), [1999] O.L.A.A. No. 688, 83 L.A.C. (4th) 330, where the arbitrator reviewed the equivalent provision in the Ontario Human Rights Code. The factual issue in the case was whether the employer was able to accommodate a pregnant employee who could not work in an area exposed to lead. [170] The arbitrator in Dominion found that the statutory factors listed in the relevant provisions were not exhaustive. She relied, in this regard, on the decision of Madam Justice Wilson in Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489. There, the Supreme Court of Canada expressed the view that the anticipated reaction of the workforce and the possible impact on general employee morale should be considered, in determining whether an accommodation would impose undue hardship on a Respondent. This would take a Tribunal beyond the factors in s. 15(2). [171] In Central Alberta Dairy Pool, Madam Justice Wilson writes that a list of factors is not intended to be exhaustive. I think the implication is that any attempt to list the full range of factors that might apply in determining what constitutes undue hardship is destined to fail. This is an important observation in the immediate case. [172] The factors in s. 15(2) appear to be employment factors. Health and safety are workplace issues. The subsection does not capture the range of issues and concerns that arise in the construction of buildings, the preservation of historical sites, and the provision of public amenities. It seems to me that the kinds of considerations that arise in the case of the York Street Steps are substantially different than the issues that arise in the case of hiring or promotion. [173] I do not believe that the subsection excludes the possibility of other factors. Section 15(2) does not say that health, safety and costs are the only factors that may be considered, in deciding what form of accommodation is required. This is significant in the present case because some of the factors that naturally arise in the context of accommodation arise outside s. 15(2). [174] There may be an additional point here. The Canadian Human Rights Act is remedial. I think it is a mistake to interpret those provisions that place responsibilities on Respondents too rigidly. The objective is to remove discrimination, not to create artificial criteria, which only impede any assessment of the rights and responsibilities that come into play in the area. (ii) The mandate of the NCC must be respected [175] The principal concern in the present case is that the National Capital Commission has its own mandate under the National Capital Act. This gives rise to legitimate concerns, which need to be consulted in determining the issues that arise under section 15 of the Canadian Human Rights Act. The scope of these concerns can be considered, if necessary, some other time. [176] The Canadian Human Rights Act has a special status, which takes it out of the sphere reserved for ordinary legislation. Other statutes must be read in a way that conforms to both the general purpose and express provisions of the Act. The NCC is obliged to carry out its mandate in a manner that is consistent with the obligations of the Crown under the Canadian Human Rights Act. [177] I think there is a corollary to this proposition, however. The Canadian Human Rights Act does not exist in isolation from other legal instruments that might have a bearing on a particular situation. I am not aware of anything in the Canadian Human Rights Act that would annul or somehow diminish the responsibilities of the NCC under the National Capital Act. On the contrary, I believe the principle of statutory consistency requires that the National Capital Act and the Canadian Human Rights Act be read as complimentary pieces of legislation. [178] It follows that the statutory obligations of the NCC must be taken into account, in deciding what constitutes reasonable accommodation under s. 15(2) of the Canadian Human Rights Act. This is significant because it became apparent in the course of the hearing that historical and aesthetic factors were important considerations in the case. [179] The law states that the determination of what constitutes reasonable accommodation requires a balancing of factors. This can only be done after the parties have participated in a proper process of accommodation, which brings these factors to the surface. As I understand it, the NCC believes that it has a legal obligation to consider historical, cultural, and aesthetic factors in deciding how to develop the sites that come under its administration. [180] I think the legal concept of accommodation is large enough to include the idea that access should be provided in a way that respects the architectural and aesthetic values that come into play at a particular site. I accept the evidence of the architects that it is important to protect the view-shed. I accept the evidence that steps should match the American Embassy. These kinds of considerations come within the normal parameters of such projects. C. The prima facie test [181] The second question raised by section 15(2) concerns the prima facie test. I recently dealt with the test in Sosnowski v. PWGSC, 2005 CHRT 47 (2005/12/09) and do not propose to add much here. The present case is nevertheless distinguishable from Sosnowski, since it arises under section 15 of the Canadian Human Rights Act. [182] The conventional analysis in the law of human rights holds that the Complainant must establish a prima facie case of discrimination. There must be some evidence that the Complainant requires accommodation. Once this is established, the burden of proof in the case shifts to the Respondent, who is required to establish that this would impose an undue hardship under subsection 15(2). [183] I have made it clear in Sosnowski that I think the conventional analysis is wrong. In my view, the fundamental burden of proof--sometimes called the legal or the persuasive burden—in a case of discrimination remains on the person alleging the discrimination throughout the course of the hearing. The prosecuting party must prove its case. The legal burden does not shift. [184] The CHRC takes a different position. Mr. Dufresne referred me to Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Maksteel Québec Inc., [2003] 3 S.C.R. 228, at para. 53, where the Supreme Court certainly seems to assume that the burden shifts to the Respondent. The problem is that the Court does not seriously discuss the issue. It is clear, moreover, at the end of the decision, that the Supreme Court places the legal burden on the Complainant. [185] I prefer the position of the NCC. Mr. Harnden referred me to a passage from the loose-leaf edition of William Pentney, ed., Discrimination and the Law (Thompson Carswell), at §15.2(d)(iii). Once a prima facie case has been made out, Mr. Pentney states: ... the respondent bears the responsive onus of coming forward with some evidence if the [respondent] is going to avoid the risk of a finding being made against him per McDonald, J. in BaseFort Patrol Ltd. v. Alberta Human Rights Commission (1982), 4 CHRR D/1200. In a secondary sense, however, the ultimate or legal burden of proof never shifts from the complainant. It is difficult to imagine a more basic rule of law, which guarantees the justice and fairness of the process. [186] The original purpose of the prima facie test was to determine, at the close of the case for prosecuting party, if there was a case to meet. If a prima facie case was established, the court went on to decide the case on the merits. The Respondent was required to lead evidence or take the risk, per McDonald J., of a finding against it. A Respondent who calls evidence is essentially working on the assumption that there is a prima facie case. [187] I have already explained this aspect of the matter in Sosnowski.The prima facie test was historically employed at the close of the case for the prosecuting party. It was never designed to be used at the end of the case, after both sides have led evidence. The problem is that the use of the test at this stage of the process inevitably obscures the real task of the Tribunal. That is merely to determine, on all the evidence, whether the Complainant has proven his case on a balance of probabilities. [188] It is not clear why so much of the caselaw seems to adopt the position that the burden of proof—and here I mean the legal burden—shifts to the Respondent once a prima facie case has been established. The only explanation I can think of is that many Tribunals have implicitly assumed that the Complainant has met some burden in meeting the prima facie test. This is clearly wrong. [189] The evidence is not weighed on the prima facie test. There is no burden of proof. The Complainant may have a doubtful case, a poor case, dare I say a bad case, and have no difficulty establishing a prima facie case. The Complainant may go on and lose the case on the merits, even if the Respondent calls no evidence. Why, then, should the legal burden shift? I cannot find a satisfactory answer to this question. There is nothing in the prima facie test that is sufficient to displace the burden of proof and place evidentiary obligations on the Respondent. [190] This does not change the statutory requirements under the Canadian Human Rights Act. Section 15(2) does not, however, place an explicit burden on the Respondent. It merely states: (2) For any practice mentioned … in paragraph (1)(g) to be considered to have a bona fide justification, it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost. I think this is directed as much to the Tribunal as the parties. It admonishes the members of the Tribunal not to speculate. [191] The defence provided by s. 15(2) is merely that it would be unreasonable to expect the Respondent to accommodate the Complainant.From a practical perspective, a Respondent will probably find it difficult to establish this without leading evidence. Any onus on the Respondent is a rhetorical or explanatory onus, however, rather than a burden of proof. I say this because there must be cases where it can be established that accommodation would cause undue hardship without the Respondent calling any evidence whatsoever. [192] Mr. Pentney prefers to use the distinction between legal and evidentiary burdens. This performs much the same function. It places an explanatory obligation on the Respondent, while keeping the legal burden on the Complainant. The point is the same in either case. If the Respondent fails to provide an explanation under s. 15(2), a Tribunal may draw an adverse inference against it. In law, at least, this kind of inference can be construed as positive proof of discrimination. [193] I am not sure that there is even any reason to go this far. After all, if the sum total of the evidence before the Tribunal is that the Complainant is entitled to accommodation, and the Respondent has not provided an explanation, I cannot see why the Tribunal would dismiss a complaint. Indeed, I would have thought that section 15(2) requires that the complaint be substantiated. [194] There may be other ways of analyzing the situation. I remain convinced, however, that the legal burden remains where it was at the beginning of the process. As Mr. Pentney writes, in the same passage: ... the distinctions involved in this issue, between statutory defences of exceptions and other defences, and between legal and evidentiary burdens must be scrupulously maintained if Board of Inquiry proceedings are to satisfy commonly accepted standards of fairness ... It follows that a Tribunal should be careful not to assign evidentiary obligations to the Respondent that might have the effect of reversing the legal burden. D. Meiorin: the principles of universal design [195] Then there is an issue with respect to the general approach that should be adopted to the present case. The CHRC has asked me to apply the criteria in British Columbia (Public Service Employee Relations Commission v. BCGSEU, [1999] 3 S.C.R. 3, usually referred to eponymously, as Meiorin. Aside from the factual differences between the two cases, I think the present case is relatively simple and does not require that kind of analysis. [196] Some of the comments in Meiorin are nevertheless more general in their application. At para. 68, for example, the Supreme Court writes: By enacting human rights statutes and providing that they are applicable to the workplace, the legislatures have determined that the standards governing the performance of work should be designed to reflect all members of society, in so far as this is reasonably possible. Courts and tribunals must bear this in mind when confronted with a claim of employment-related discrimination. To the extent that a standard unnecessarily fails to reflect the differences among individuals, it runs afoul of the prohibitions contained in the various human rights statutes and must be replaced. There is a point of comparison in the physical standards adopted by the NCC with respect to the developments that come under its control. [197] All of the parties have accepted that the principles of universal design provide the framework that should be used in determining the form of accommodation that is appropriate in a particular case. The NCC regularly advises other government departments of their obligation to respect and abide these principles. [198] There is a legal point here. The principles of universal design derive from the same notion of equality that lies at the heart of the Canadian Human Rights Act. It seems to me that the principles of universal design can be seen as a natural elaboration of the notion of equality, outside the law, in the field of architecture and planning. I do not see why they cannot be given the same kind of force that custom and practice is given in other areas of the law. [199] There is a minor issue here. It became evident during the hearing that the principles of universal design can be formulated in a number of ways. This does not seem to violate the general consensus that exists as to the basic tenets that should be included in any compilation of these principles. For the purposes of the present case, I think it is best to make use of the appendix attached to Mr. Rapson’s report, which contains a convenient summary of these principles. E. The duty to accommodate: reasonableness [200] The caselaw dealing with accommodation has focused primarily on the bona fide exceptions. For myself, at least, I think it is better to begin with a general statement of the law. That statement is simply that the Respondent is required to provide reasonable accommodation under s. 15 of the Canadian Human Rights Act. It would be unreasonable to require something further. [201] I agree with this position of the NCC on the point. The obligations in the Act do not go beyond the requirement that a Respondent provide reasonable accommodation. The NCC is legally obliged to provide Mr. Brown and those who cannot climb the York Street stairs with a reasonable alternative. That is all it is obliged to do. [202] The Supreme Court of Canada has already recognized that there is only one standard of accommodation. In Commission scolaire régionale de Chambly v. Bergevin [1994] 2 S.C.R. 525, at p. 546. Cory J. writes, in referring to the Charter of Human Rights and Freedoms: It is important to remember that the duty to accommodate is limited by the words reasonable and short of undue hardship. Those words do not constitute independent criteria. Rather they are alternate methods of expressing the same concept. Justice Cory then refers to an equivalent passage in Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970, at 984. [203] The Supreme Court has made it clear that the concept of undue hardship does not create an independent legal standard. That legal standard is reasonableness. Any interpretation of the term undue hardship that imposes an unreasonable burden on a Respondent cannot be supported. [204] The difficulty seems to lie in the fact that the reasonableness of a particular form of accommodation is relative. It depends on the situation. The concept of undue hardship accordingly provides a measuring stick, which a Tribunal can use to determine when the Complainant is asking too much. [205] I would assume that Parliament chose undue hardship as the standard arbiter because the provision of accommodation will inevitably entail some level of hardship. This is inescapable. I do not think it was the intention of Parliament, however, to do away with the standard of reasonableness.It is the standard of reasonableness that is definitive and not the concept of undue hardship. Mr. Harnden has relied on Hutchinson v. Canada (Minister of Environment), [2003] 4 F.C. 580, where the Court held that the question of undue hardship does not arise if a Respondent offers a Complainant reasonable alternatives. I think this is another way of saying the same thing. [206] The decision in Hutchinson nevertheless illustrates that there are at least two lines of defence. The first line of defence is that the Respondent has acted reasonably. The NCC submits in the present case that it has provided the Complainant with reasonable accommodation. The second line is that the demand for accommodation would impose undue hardship on the Respondent under s. 15(2). The legal implication is that this is unreasonable. [207] The distinction between the two lines of defence seems to have collapsed in the caselaw, which has tended to rest everything on the statutory exception. It is true there is an overlap. There are elements of both lines of defence in the case before me. The major argument of the NCC is that the elevator at the Daly site provides reasonable accommodation. The defence of undue hardship is nevertheless there, in the background. [208] The only point I wish to make is that the two lines of defence are distinguishable. It follows that the first line of defence does not require any evidence of undue hardship. This may seem advantageous to a Respondent, since it keeps the burden of proof in the case squarely on the Complainant. The difference is illusory, however, if the Tribunal keeps the legal burden of proof where the law has historically said that it must be kept. [209] The determination of what is reasonable is specific to the circumstances of each case. I have been referred to the loose-leaf edition of The Duty to Accommodate in Employment (Canada Law Book), ed. Kevin D. MacNeill, at §. 11:30, where the editor cites authority for the proposition that the determination of what constitutes undue hardship requires a balancing of factors and a process of weighing.All of the relevant factors must be taken into account and weighed against each other, in deciding whether a particular form of accommodation is reasonable. It seems to me that there is a question of proportionality bound up in this. This requires an exercise of judgement, which is the particular responsibility of the Tribunal, and goes to the heart of the adjudicative process. [210] These comments should not be misapplied. I was also referred to Re Mount Sinai Hospital and Ontario Nurses’ Association (1996), 54 LAC (4th) 261, where the Nurses’ Association was seeking a nursing position for an injured employee. The panel of arbitrators held, at p. 273, that the cost of accommodation must be compared with the resulting benefit, to determine whether it constitutes an undue hardship. They then suggested that the hardship would be undue in cases where the disadvantage removed by accommodating an employee would be very small in relation to the cost of eliminating it. [211] This kind of analogy is of little assistance in the immediate case. The NCC created the disadvantage that it is now charged with removing. It would be wrong to let it rely on its own failure to fulfill its responsibilities and argue that the disadvantage is too small to justify the cost of correcting it. It is against public policy to allow a party to raise its own failure under the Act as a defence to a complaint of discrimination. F. The duty to consult [212] The duty to accommodate includes a duty to consult. The CHRC has submitted that the NCC must demonstrate that it followed proper process. This is probably the major issue in the case. [213] Most of the discussion of the duty to consult in the caselaw deals with employment. In Conte v. Rogers Cablesystems Ltd., (1999) T.D. 4/99, at para. 77, for example, this Tribunal held: It is the employer who has charge of the workplace and thus is expected to initiate the process of accommodation. At the very least, the employer is required to engage in an examination of the employee’s current medical condition, the prognosis for recovery and the employee’s capabilities for alternative work. I think this provides some idea of the obligations on a Respondent in cases concerning access. [214] The analogy between cases of employment and cases of physical access is imperfect. The obligation to accommodate an employee arises out of the legal relationship between an employer and an employee. There are responsibilities and duties on both sides. The obligations of a public agency like the NCC to provide access to a public park are free-standing and different in kind. [215] The most relevant authority in the area appears to be the decision of the Supreme Court of Canada in Grismer, indexed as British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868. In Grismer, the Superintendent of Motor Vehicles cancelled the Complainant’s driver’s licence because he suffered from a condition known as homonymous hemianopia, which eliminated almost all of his left-side peripheral vision. Anyone with this condition was barred from holding a licence. [216] The issue in the case was accommodation. The B.C. Council of Human Rights ordered the Superintendent to give Mr. Grismer an individual assessment to determine whether he was entitled to a licence, and whether restrictions should be placed on any licence. The case was appealed, and eventually made its way to the Supreme Court, which applied the Meiorin criteria. [217] The ratio decidendi of the case is much simpler, however. At para. 44, Chief Justice McLaughlin wrote: This case deals with no more than the right to be accommodated. It does not decide that Mr. Grismer had the right to a driver's licence. It merely [page894] establishes that he had a right to be assessed. That was all the Member [of the B.C. Council of Human Rights] found and all that we assert. The discrimination here lies not in the refusal to give Mr. Grismer a driver's licence, but in the refusal to even permit him to attempt to demonstrate that his situation could be accommodated without jeopardizing the Superintendent's goal of reasonable road safety. The Superintendent of Motor Vehicles had not offered so much as a gesture in the direction of accommodation. [218] The situation before me in the present case concerns the public at large rather than an individual. There are nevertheless parallels with Grismer. Mr. Brown and the CHRC says that there was no real investigation of the situation. I do not accept this. I nevertheless agree that the NCC did not enter into a proper round of consultations. There was no real airing of the views of the people who needed the accommodation. [219] The parallels with Grismer are real. At para. 43 of Grismer, the Chief Justice writes that the Superintendent of Motor Vehicles: ... was obliged to give Mr. Grismer the opportunity to prove whether or not he could drive safely, by assessing Mr. Grismer individually. The failure to consult with Mr. Grismer and give him an opportunity to address the matter was itself discriminatory. It follows that the charge of discrimination under the Human Rights Act was established. [220] I take it from Grismer that the first obligation to accommodate is obligation to enter into a proper process of consultation. The Respondent must inquire into the matter and obtain the views of the persons who require accommodation. I would go further and say that there is an element of natural justice in this process. There must be an open exchange of views and the persons who require accommodation should be given an opportunity to reply to any concerns that might prevent the Respondent from providing the accommodation that they are seeking. [221] The NCC has an obligation to inform itself of situations that might potentially discriminate against persons who have disabilities. There is a further duty to investigate these situations and canvass the possible solutions. This includes a duty to openly and sincerely consult the community of individuals that may be affected. The process of consultation must be meaningful: the legitimate concerns and views of the community must be taken into consideration, in deciding what accommodation is appropriate. [222] I realize that the defence before me is that the Respondent has provided reasonable accommodation. This may or may not have a bearing on the duty to consult. I would nevertheless think that some degree of consultation is a necessary element in any process of accommodation. It seems to me that a Respondent will have to discuss the matter with the person seeking accommodation, if only to determine what form of accommodation is appropriate. In any event, the process followed in the present case was insufficient. [223] I would make one final comment. The NCC recognized, in all fairness, that public consultation is an integral part of barrier-free design. It also cited caselaw for the proposition that the process of consultation is collaborative. The other parties should be given an ample opportunity to participate. This is all to the good. At the end of the day, however, all of the parties need to recognize that the NCC is the custodian of the York Street Steps. It is the NCC that has the legal responsibility to make decisions with respect to the design, control and maintenance of the site at the York Street Steps. IV. Liability:The Case Against The NCC [224] The law of the person and human rights starts with the recognition that everyone is equal. It follows that any analysis of the present case must start with the proposition that the NCC’s obligation to maintain and develop the National Capital Region must be interpreted in a way that treats persons with disabilities the same as other persons. Everyone has the same right to access under s. 2 of the Act. [225] The NCC has an obligation to accommodate those persons who cannot climb the York Street Steps. This obligation includes a duty to consult, in some manner, with individuals, associations, and groups who can voice the views and concerns of these persons. There is no rigid rule as to who should be consulted. [226] The main issue before me in the present case is whether the process of consultation was legally adequate. It was not. I am satisfied on a balance of probabilities that the NCC failed to meet its obligations under the Canadian Human Rights Act. It does not seem right to say that the process of consultation was unreasonable. It seems more accurate to say that it was insufficient. [227] I am also satisfied, on a balance of probabilities, that the NCC is discriminating against Mr. Brown and other persons with disabilities. There are a number of observations that contribute to these findings. A. The York Street Steps are not accessible [228] The first observation is that the York Street Steps are not accessible. This is a factual and legal finding.The NCC has not provided any accommodation for people who cannot climb the stairs. Mr. Brown and people with disabilities have no means of climbing the hill and gaining entry to Major’s Hill Park at the York Street Steps. The Steps accordingly discriminate against them. [229] The NCC implied in its final submissions that it was unnecessary to provide access at the Steps. The Respondents argued that the flow of pedestrian traffic up the steps is generally towards the Chateau Laurier and Parliament Hill, rather than Major’s Hill Park. The Daly site would better serve these persons. There is no issue about any of this. Even Mr. Rapson agreed that the route through the Daly-site was preferable for people who were going to Parliament Hill. [230] The position on the other side is simply that the Canadian Human Rights Act prohibits the NCC from differentiating between people who can climb the steps and people who cannot climb them. The issue is parity. The NCC cannot say that persons with disabilities do not need access to Major’s Hill Park at York and Sussex. If people with disabilities do not need access to Major’s Hill Park, the same can be said of those who do not have disabilities. The public interest is the same in both cases. [231] The question before me is accordingly quite simple. It is whether the NCC has discriminated against those persons with disabilities, like Mr. Brown, who want the same access to Major’s Hill Park as other members of the public. The response from the NCC is that the Daly site is sufficient. The evidence does not bear this out. [232] Mr. Rapson’s evidence was that the Daly site elevator was simply too far. It is not equitable and therefore contravenes one of the basic principles of universal design. The distance to be traversed—by those who have the most difficulty traversing it—presents a real problem. It seems to me that any extra burden should be placed on the individuals who are best able to deal with it. [233] Mr. Martin testified that the Daly site would require an additional travel distance of 284 metres. That is 284 metres that other people do not have to travel. The provision of an elevator a hundred metres down the road does not provide meaningful accommodation. Half that distance would be too far. I am satisfied that the Canadian Human Rights Act requires accommodation within the close proximity of the steps and not a block away. [234] Perhaps it is a matter of language. I do not understand how it can be said that the elevator at the Daly site provides a person in a wheelchair with access to Major’s Hill Park at the York Street Steps. Some things are common sense. The Daly site is another location altogether. The elevator at the Daly site may provide access to Major’s Hill Park from down the street, but it is stretching the facts to say that it provides accommodation at the York Street Steps. There is simply no access at the York Street Steps. [235] The evidence is really that persons with disabilities have to make a detour that others do not have to make. They have to take another route and go another way. This is not a reasonable form of accommodation. The truth is that the NCC simply assumed from the beginning that it would be sufficient to provide access at the Daly site. This was a legal error. I do not see how it can be said that the provision of the elevator at the Daly site provides the accommodation required by the Canadian Human Rights Act. [236] The facts of each case are different. It is common ground, however, that the NCC has a duty to provide reasonable accommodation. I think it follows, purely as a matter or logic, that a Respondent should provide the access required by people with disabilities as near as possible to the place where it is required. It would be unreasonable to do anything less. Any access should be equitable and proximate, and in keeping with the principles of universal access. [237] The social issue here is separation. The Canadian Human Rights Act is based on the principle that people should be treated equally. The implication is that people should be treated, as much as possible, in the same way. It runs against the spirit of the Act to separate persons with disabilities from other people in situations where it is unnecessary to do so. This is a matter of dignity, physically and psychologically. It reminds people with disabilities that they don't fit in. [238] I am satisfied on the facts of the present case that any access at the York Street Steps should be provided in the immediate vicinity of the steps, and probably on site. There is some room for interpretation. It seems to me that the Connaught Building might be considered part of the same site as the York Street Steps for the purposes of the Canadian Human Rights Act. [239] There was at least a suggestion in the evidence that the provision of access at the Steps themselves would impose undue hardship on the NCC.This was fragmentary and vague, however. It was not sufficient to provide a defence. B. The process of consultation was deficient [240] The second observation is that the process of consultation was deficient. The NCC was obliged to seek the input of groups or associations who can be legitimately said to represent persons with disabilities. The interests of the disabled community need to be considered throughout the process of design and construction. [241] The NCC’s response is that it consulted the disabled community in designing the York Street Steps. There were meetings with the identified stakeholders. This included the City of Ottawa Accessibility Advisory Committee, the Canadian Paraplegic Association, the Disabled Persons Community Resources, and the Independent Living Centre. There was some attempt to obtain the views of the disabled community. The truth, however, is that these discussions were sparse and incomplete. [242] The process of consultation did not proceed very far. It seems to have been designed, intentionally or not, to bring these participants on side. There was only one meeting, on July 23, 2002 that could be considered a proper consultation. The conduct of the meeting has been questioned and there was nothing like the transparent public process that one would hope to see in such a case. [243] The meeting was essentially closed. Mr. Brown was not invited. It was suggested by the NCC that this was at the suggestion of a conciliator for the CHRC. I find this difficult to comprehend. It appears that the NCC did not want him at the meeting. He had become an adversary. [244] There are two views of what occurred at the meeting. Ms. Paialunga testified that there was a consensus that the Daly site was the best option. I suppose it is a matter of degree. There was no compulsion, but it is clear that the views of the NCC and the consultants infiltrated the process. The process favoured the Daly site. Mr. Warren and the Municipal Advisory Committee were never really given an opportunity to express their views. [245] The process of consultation was constrained by many factors, not the least of which was that the meeting on July 23, 2002 proceeded on a false set of assumptions. One of these assumptions was that the elevator at the Daly site would provide a reasonable form of accommodation. This was never open for discussion. Another assumption was that the Connaught Building was out of the question. Another was that the parties had to choose between the options set out in the Robertson Report. [246] These kinds of limits are out of keeping with the kind of inquiry contemplated by the Canadian Human Rights Act. It was clear from Ms. Paialunga’s testimony that she felt the choice was between the Daly site and the elevator beside the steps. It was one or the other, and what could she do? She was concerned about the safety of an elevator at the steps and did not want to lose the Daly option. [247] Mr. Brown and Ms. Paialunga debated the philosophical side of the issue. Mr Brown felt that the principle of self-determination should take precedence over other considerations. If the only feasible location for an elevator at the steps was between the Steps and the Connaught Building, he was in favour of it. Access down a dark alley is better than no access at all. Persons with disabilities should be able to decide for themselves whether they want to use the access that is provided. [248] There is a real disconnection here, however. I do not see why there had to be a choice between an elevator at the Daly site and the York Street Steps. The elevator at the Daly site was a separate matter. It may or may not have been built, whatever was done at the Steps, and it was wrong of the NCC to put this kind of choice to the disabled community. I am satisfied that this seriously undermined the veracity of the process. [249] I am not sure that I even understand why the elevator at the Daly site would be included in a list of possible solutions to the problem of access at the York Street Steps. I know that the NCC was looking at the entire block, rather than the junction of York Street and Sussex Drive. This kind of approach is generally inappropriate in the context of access, however, which is usually specific to a particular site. [250] I realize that it was not an easy situation for the NCC. It does not really matter at the end of the day. The NCC was obliged to consult with the relevant parties, and keep consulting, until all of the reasonable alternatives were exhausted. It is impossible to know where a collaborative, open-ended round of consultations might have led. C. The real problem lies in the design of the York Street Steps [251] The third observation is that the real problem lies in the design of the York Street Steps. I think this was the broader position taken by the witnesses for the Complainant and the CHRC. Mr. Rapson, for example, felt that there was an opportunity to address the accessibility issues when the new steps were designed. This was a missed opportunity. [252] Mr. Warren also testified that the Daly site was presented as the only viable option at the meeting on July 23, 2002. This was frustrating because it did not deal with the real problem, which was the failure to build an accessible set of stairs. The Daly elevator was the best option that was presented, but only because the steps themselves were not made accessible at the time they were built as they should have been. None of the options presented at the meeting in July 2002 dealt with the real problem, which was the original design of the steps. There was very little that the Municipal Advisory Committee or anyone else could do. [253] I think the testimony of Mr. Hébert and Mr. Martin backs this up. The NCC, for its part, has essentially admitted that the York Street Steps were constructed without access, on the rather vague understanding that an elevator would probably be provided at the Daly site. This merely proves the point: the NCC was prepared to build the steps without access, on the basis that it could somehow remedy the situation in the future. It seems to me that this idea openly contravenes s. 5 of the Canadian Human Rights Act. [254] The matter was compounded by the subsequent conduct of the NCC. Although there were consultations after the complaint was filed, Mr. Martin testified that there was no question of rebuilding the Steps. That was off the table. This merely put the real problem out of reach. The difficulty with the options presented at the meeting on July 23, 2002 were really secondary. If the proposed elevator, for example, was down a dark alleyway and potentially unsafe, that can be attributed to the design of the Steps. The problem lies in the initial construction. [255] I want to be fair. The testimony of Jerrold Corush makes it clear that the NCC studied the problem of providing access when the stairs were built. The problem is that it did so on its own, without a proper round of consultations, and without appreciating the full extent of its obligations under the Canadian Human Rights Act. These obligations existed at the location of the steps: the decision to make use of the elevator at the Daly site was really a way of side-stepping them. [256] None of the parties disputed the fact that the York Street Steps were built without any access. This is where the discrimination lies and I do not see how the provision of an alternative route through the Daly site corrects it. Even if the development of the Daly site has corrected the situation—and it has not—the NCC has discriminated against the Complainant in the years between the completion of the steps and the construction of the Daly elevator. D. Conclusions [257] I have reached the following conclusions. The York Street Steps are a public amenity, built in a prominent location, for the benefit of visitors and residents alike. One of the benefits that they provide is access to Major’s Hill Park, which boasts a scenic view of the Rideau locks and Parliament Hill. This access has not been provided to people who are disabled. [258] The NCC required that an elevator be installed at the Daly site. There were advantages to the use of the Daly site. The elevator would be available twenty-four hours a day. The York Street site is more exposed to the elements than the Daly site; the Daly site would be safer and probably more convenient for people who want to visit Parliament Hill. It is all beside the point. The situation at the Steps remain the same as it was before the Daly site was constructed. [259] The Daly site provides little more than a detour. The access provided by the elevator at the Daly site requires people who have difficulty walking, for example, to walk around the Connaught Building. Where is the equity, fairness or logic in this? There may be an elevator in the middle of the detour, but the detour itself is unfair and does not provide a reasonable form of accommodation. [260] The York Street Steps present a barrier to people with disabilities. It is evident that people who cannot climb the steps do not have the same access to Major’s Hill Park as other people. The NCC has not provided reasonable accommodation. I accordingly find that the NCC, in building and maintaining the steps, has discriminated against Mr. Brown and people with disabilities under s. 5 of the Canadian Human Rights Act. [261] Mr. Corush testified that the project at York and Sussex was to get people up the hill. The finished steps invite visitors and residents alike to climb the hill and investigate the park, the view it holds, and the precincts of the Parliament Buildings. It is the NCC that has invited the public to enjoy the area. Under the Canadian Human Rights Act, it must extend this invitation to those who cannot climb the steps. [262] The caselaw recognizes that it is impossible to determine what form of accommodation is appropriate without a process of inquiry and consultation that explores the matter. There are engineering issues that must be considered. There are aesthetic, historical, security and safety issues. There is a point, at least, where costs have to be considered. [263] The consultations that took place in the past were insufficient. They did not explore the matter properly. They did not give the public or the disabled community a real opportunity to contribute to the process. They did not exhibit that level of engagement that characterizes a meaningful process of consultation. The party with the responsibility to decide the issue must be willing to change its view or alter its approach to the matter. [264] The important thing at this late stage is to rectify the situation. I think, moreover, that the solution is relatively simple. The NCC needs to return to the process of accommodation and continue its consultations. The other parties have a legal obligation to participate sincerely and honestly in the negotiations. At this stage, at least, it is not for the Tribunal to determine what form of access would constitute reasonable accommodation. [265] This deserves emphasis. The NCC remains the effective owner of the site. It has all the prerogatives that come with that ownership. At the end of the day, it is the NCC that has the responsibility and indeed the privilege of deciding on the appropriate accommodation. This does not reduce its obligations. The process of accommodation must be collaborative. V. Liability:The Case Against Public Works And Government Services [266] I am also satisfied on a balance of probabilities, that the failure of Public Works and Government Services to participate properly in the process of accommodating Mr. Brown is a discriminatory form of conduct. This constitutes a contravention of s. 5 of the Canadian Human Rights Act. Public Works has raised a number of issues in its defence. A. Public Works is not immune from a finding of liability [267] The first issue is preliminary and requires explanation. Mr. Rapson testified in the early part of the hearing that the Connaught Building, which is apparently owned by Public Works, provided the natural means of providing access at the site. This led the CHRC to make a motion that Public Works be added as a party to the litigation. I allowed the motion. [268] In its written argument, Public Works has now taken the position that it was not a party to the original litigation. This, it submits, prevents the Tribunal from making a finding of liability against it. Mr. Lester then goes on to argue that the Complainant and the CHRC cannot seek a remedy against Public Works without a finding of liability. [269] I have already dealt with the first point, in adding Public Works Government Services Canada as a party to the complaint. Section 48.9(2)(b) of the Canadian Human Rights Act clearly contemplates the addition of parties. I would note that the hearing was adjourned and Public Works was given ample time to inform itself of the facts and particulars of the case. It can no longer complain that it was prejudiced by the fact that it was not a party to the original litigation. [270] The emphasis in the Canadian Human Rights Act is on finding a remedy. If that means bringing in an agency of the Crown, in the circumstances that arise before me, I think the Act directs me to do so. The whole point of adding Public Works as a co-Respondent was to make sure that all of the possible solutions to the problem could be properly investigated. The Connaught Building cannot be considered for the purposes of providing access unless Public Works is a party to the hearing. [271] I nevertheless accept the submission of Public Works on the second point. I think that Mr. Lester was right in his reading of section 53(2) of the Canadian Human Rights Act, which only gives the Tribunal the authority to make an order against the person found to be engaging or to have engaged in the discriminatory practice. This only shifts the inquiry, however, and raises the question whether the failure to assist the NCC and ultimately the CHRC in resolving the complaint is sufficient to ground liability. I think it is. [272] The Federal Court had no difficulty with a finding of liability against a union in Goyette v. Voyageur Colonial Ltee, [1999] FCJ. No. 1678; 2000 CLLC 230-021, on the basis that it had negotiated agreements with the employer that were discriminatory. Pinard J. relied on the decision of the Supreme Court in Renaud v. Central Okanagan School District No. 23, [1999] 2 SCR 970, at page 989, where the court commented that a union which causes or contributes to the discriminatory effect incurs liability. [273] I think the decision in Goyette reflects the fact that there are situations where it is impossible to deal adequately with a complaint without bringing in a third party. I would not want to take this too far. The alternative, however, is unsatisfactory. I would not want to accept as a principle that there are cases where accommodation cannot be provided, in spite of the fact that it is easily available through some means external to the parties. Public Works can take some comfort in the fact that what can be reasonably expected of a third party may be less than what can be expected of the principal Respondent. [274] There are two possibilities here. One is that there is a general duty to facilitate accommodation. The failure to fulfill this duty is enough to substantiate a complaint against a third party. On this reading of the Canadian Human Rights Act, it is enough that Public Works refused to co-operate with the other parties in determining whether it was feasible to use the Connaught Building. The liability of Public Works may be limited to the failure to co-operate; but it is nonetheless liable. [275] There is no need to go this far in the present case, however. The other possibility is that there is enough of a nexus between Public Works and the NCC to impose a special duty on Public Works. I recognize that the two agencies, if I can use that term, are separate legal entities. They are nevertheless both emanations of the Crown and serve the public interest. [276] There is a doctrine of law that says the Crown is indivisible. I think the idea behind this doctrine is helpful, at least by analogy, in the circumstances of the present case. The decisive factor is that the Crown is in some sense the ultimate owner of both the York Street Steps and the Connaught Building. The stewardship of the two parcels of land may be under separate hands, but the property and object of ownership is in some sense the same. [277] The legal personalities of the NCC and Public Works Government Services derive in some sense from the same source. In all the circumstances of the case, I think the nexus between the NCC and the Department of Public Works is sufficient to require that the Department assist the NCC in its investigation of the Connaught Building as a possible location for an elevator. The choice between giving effect to the fundamental rights of the person or allowing them to be frustrated by the technical division of ownership. [278] It seems to me that the provision of access in the present case is an obligation that attaches, in some sense, to the property in question. The Crown is in some sense the ultimate owner of both the York Street Steps and the Connaught Building, and it is the stewardship of the two properties—I must say, in the larger public interest—that has been called into question in the present case. I believe this ownership can be inferred from the evidence, though the matter was not dealt with as extensively as it should have been in the hearing. B. It is too late to complain of a defect in the process [279] There is a further argument from Public Works that there is a failure of natural justice. This argument is based on the failure of the CHRC to provide proper particulars. [280] I do not see any prejudice here. The questions posed by counsel for the CHRC throughout the course of the hearing were simple and straight-forward. The allegation is that Public Works refused to participate in the efforts of the other parties to find a means of providing access at the steps. The facts are few, but that is because Public Works refused to participate in the inquiry under the Act. [281] The argument from Public Works comes too late. The matter should have been raised much earlier. I find that Public Works waived any right to object, in choosing not to raise the issue until the end of the process, when it is too late to rectify the deficiency. Any defect has, in any event, been cured by the exchange of ample submissions on all sides. [282] The one aspect of these submissions from Public Works that I would accept is that the CHRC has over-reached itself, in arguing that Public Works has discriminated against Mr. Brown by failing to provide access through the Connaught Building. This goes too far on the evidence, as well as the particulars, and it is premature to say whether Public Works has any obligation to provide the use of its premises for the purposes of access. C. The merits of the case against Public Works [283] I do not accept the submission of counsel that Public Works seriously considered the possibility of allowing public access through the Connaught Building. The blame for this lies squarely on Public Works. The letter from Mr. Charette, the property manager for the Building, essentially pre-empted any discussion of the issue. [284] Public Works led evidence at the hearing with respect to its security concerns. This was new, however, and was not available to the parties until Public Works was added as a party to the complaint. The Department has nevertheless taken a consistent position. To quote from its written submissions: The principal concern that Public Works had in offering access through the Connaught Building was that security issues could not be adequately dealt with. This was highlighted by the testimony of Ms. Matte. [285] The submissions go on to suggest that members of the public would have to pass through various security measures, including security screening, personal identification, passes and baggage checks. It would be a security risk to have employees from the Canada Revenue Agency in the same elevator as members of the public. There was also evidence with respect to some of the architectural and physical problems that stand in the way of using the Connaught Building. [286] These concerns must be weighed and evaluated, along with a host of other considerations, in deciding whether it would be appropriate to use the Connaught Building to provide access at the York Street Steps. The problem is that Public Works has treated these concerns as a legal bar to any discussion of the possibility of accommodation. I reject this position. The process of accommodation contemplated by the Canadian Human Rights Act and the caselaw cannot be circumvented so easily. [287] The Complainant and the CHRC are entitled to a finding of liability. There is a sense, at least, in which this finding is preliminary. As Mr. Lester and Ms. Kikuchi put it, in their submissions: ... before the Connaught Building option could properly be considered a reasonable accommodation or an effective remedy, it is clear that a consultation process with the various stakeholders must be undertaken. This requires further negotiations between the parties. [288] I am satisfied that Public Works and Government Services has a legal obligation under the Canadian Human Rights Act to participate in the efforts of the NCC to solve the larger problem. Although I am not taking any position on the question whether the Connaught Building should be used to provide access at the York Street Steps, it remains one of the possibilities. It should be openly and properly considered, without conditions. I will let the parties decide how far that consideration should go. [289] I will leave aside the question whether the NCC might itself be liable, in some sense, for its failure to pursue the matter further. I nevertheless do not see how, on the evidence before me, the NCC could fulfill its legal duty to investigate the possibility of accommodation without seriously inquiring into the possible use of the Connaught Building. It seems to me that both the NCC and the CHRC should have insisted, far more vigorously, that Public Works participate in the process of accommodation. VI. Issues On Remedy [290] The caselaw makes it clear that the Tribunal has the authority to supervise the remedial part of its hearings. This is a normal part of its process. I will accordingly retain jurisdiction to deal with any issues arising out of the present decision and the question of remedy. [291] As I understand it, Mr. Brown is seeking the following: an order that the NCC make the existing York Street Steps accessible; a written apology; compensation for hurt feelings; a barrier free design accessibility audit of all the property administered by the NCC; training for all of the personnel of the NCC working on accessibility issues. [292] The CHRC is seeking: a letter of apology for Mr. Brown; damages for pain and suffering; damages for expenses incurred; an order that the site be made wheelchair accessible; an order that the NCC work with the CHRC in determining a policy on accessibility. [293] There are a number of issues here. The decision in Stevenson v. Canada (Canadian Security Intelligence Service), [2003] F.C.J. No. 491 holds that I cannot order an apology. As a general rule, I think the question of compensation for pain and suffering should be dealt with promptly. It is not clear to me whether the CHRC speaks for Mr. Brown on the matter of compensation and expenses. [294] The parties are directed to advise me in writing how they wish to proceed. The request for an order that the NCC make the York Street Steps accessible is premature.I think it is sufficient to prepare a formal order, as I have suggested, requiring that the NCC return to the process of consultation, identify the possible alternatives, and propose some form of reasonable accommodation. The other parties would have the right to return to the Tribunal for direction if they feel that the NCC has refused to consider reasonable alternatives. [295] There is a political side to these consultations. They should involve the public. One would think that the Municipal Advisory Committee, Mr. Brown, and the CHRC should all be full participants in the process. There are other parties, departments and individuals who might also be consulted, whether it is those persons responsible for security in the area, or the representatives of the American Embassy. It is ultimately for the NCC to decide who should be included in the process, subject to any objections from the other parties. [296] There is another point. It seems to me that the process of consultations can only go forward on the basis that some form of accommodation can be provided at the steps. The only issue is what form of accommodation is reasonable. If any of the parties have difficulty with this understanding of the situation, they should apply to the Tribunal for further directions. [297] The parties are obliged to act in good faith. They have a legal obligation to try and reach a consensus within a reasonable timeframe. If there are any questions as to the process that should be followed in resolving the matter, or the parties need direction on a specific issue, they can apply to the Tribunal for directions. VII. Summary Of Major Findings [298] The complexity of the case is such that it may be of assistance to summarize the principal findings and directions in this decision. They are as follows: The complaint has been substantiated against the NCC.The York Street Steps are not accessible.This is a contravention of s. 5 of the Canadian Human Rights Act.It has not been established that making them accessible would impose an undue hardship on the NCC. Public Works Government Services Canada failed to co-operate in the process of accommodation. This is a discriminatory form of conduct. The complaint has accordingly been substantiated against Public Works. The nexus between the NCC and Public Works, both of which are emanations of the Crown, is sufficient to require the co-operation of Public Works. The construction of the elevator at the Daly site does not satisfy the Crown’s obligation to accommodate Mr. Brown and other persons who cannot climb the stairs. The NCC is legally obliged to provide accommodation to the point of undue hardship in the immediate vicinity of the steps. This area includes the north end of the Connaught Building. The duty to accommodate includes an obligation to participate in a meaningful dialogue with the party that requires accommodation. There is a duty to make inquiries and consult with the other parties. The NCC had an obligation to investigate the possibility of using the Connaught Building. Public Works had an obligation to co-operate in the investigation. Both Respondents failed in their obligations. I am satisfied that Public Works is independently liable for its failure to co-operate with the other parties in making the Steps accessible after the complaint was filed. This takes me to the existing situation. The NCC is obliged to make the York Street Steps accessible, up to the point set out in the Act. In doing so, the NCC has an obligation to consult with Mr. Brown, the CHRC, and the disabled community generally. The process of consultation should be open and meaningful. Decisions should not be made until after the consultation takes place. Public Works is legally obliged to participate in the process of consultation. There is a duty on Mr. Brown and any other participants in the process of consultation to participate sincerely in the process, inform the Respondents of their concerns, and accept a reasonable offer of accommodation. The legal mandate of the NCC must be respected. All of the participants in the process of consultation must recognize the legitimate concerns of the NCC, with respect to the symbolic, aesthetic, historical, and financial implications of any accommodation. I do not believe the factors listed in s. 15(2) of the Canadian Human Rights Act are exhaustive. The consultation that took place in 1994 and 1999 was selective and insufficient. It was not the kind of thorough, searching process required by the law. The most obvious example of this is the failure to seriously address the possibility of using the elevator shaft at the North end of the Connaught Building. There are other issues, however, that should be investigated, such as the precise location of any proposed elevator at the site of the steps. I am satisfied that the NCC sincerely believed that the provision of an elevator at the Daly site would provide reasonable accommodation. This may help to explain why the NCC did not engage in the kind of open, exploratory discussion that the law requires in 1994 and 1999. Mr. Brown, Mr. Warren and Mr. McMahon, all of whom are unable to climb the steps, found the attitude of the NCC patronizing. It would be premature to comment on the kind of accommodation that would be appropriate. The expertise that is needed in architecture, planning, access and security lies in the hands of the parties, who will have to return to their discussions and determine what form of accommodation is required. The parties are directed to include a schedule for consultations in the formal order. I want to be clear that the obligations on the Respondents are limited to the provision of reasonable accommodation. This is worth repeating. The standard is reasonableness. The reference to undue hardship in the Canadian Human Rights Act does not change this standard. It is clear at the same time that the NCC has no obligation to accommodate the Complainant and people with disabilities if the accommodation in question would impose an undue hardship on it. If the Complainant and Commission feel that the Respondents have not fulfilled their duty to consult openly and sincerely with the other parties, or acted unreasonably, they are entitled to return to the Tribunal. All of the parties are entitled to request the assistance of the Tribunal, if issues arise that require its direction. The parties are accordingly directed to return to their negotiations. Once these negotiations are completed, and the NCC has determined what accommodation it is willing to provide, it is directed to deliver a formal letter of intention or other notice of proposed action to the other parties, setting out its plans for rectifying the situation. This document shall be signed by the Chair of the NCC, the Chair’s designate, or an officer of the agency, with the authority to bind the NCC. The other parties will have 30 days to bring the matter formally before the Tribunal, if they feel that this process will not resolve the complaint under the Canadian Human Rights Act.All of the parties have the right to come back to the Tribunal at an earlier time, should that be necessary. The parties are directed to advise the Tribunal within the next 30 days as to how they would like to deal with the request for compensation and any other outstanding matters. There should be a written order, in the circumstances of the case. I would accordingly direct the CHRC to prepare a formal order, setting out the terms and conditions on which the matter will proceed. If the parties cannot agree on the terms of the order, I would direct them to contact the Tribunal within 45 days of the date of this decision. [299] This has been an arduous case and I would like to thank all counsel for their able assistance. I look forward to hearing from the parties. [300] I regret to say that Geoffrey Lester, lead counsel for Public Works, died unexpectedly before he was able to make his final submissions. I am sure that counsel and the parties would like me to recognize the work he did on the case. Mr. Lester was a passionate litigator and earned the respect of everyone in the hearing.I think his colleagues must miss his intensity, frankness and intellectual rigour. Signed by Dr. Paul Groarke Tribunal Member Ottawa, Ontario June 6, 2006 Canadian Human Rights Tribunal Parties of Record Tribunal File: T760/1003 Style of Cause: Bob Brown v. National Capital Commission and Public Works and Government Services Canada Decision of the Tribunal Dated: June 6, 2006 Date and Place of Hearing: May 18 - 21, 2004 June 23, 24, 29 & 30, 2004 Ottawa, Ontario Appearances: Bob Brown, for himself Philippe Dufresne / Giacomo Vigna /, for the Canadian Human Rights Commission Ikram Warsame, Lynn H. Harnden / Sébastien Huard, for the Respondent, National Capital Commission Geoffrey Lester / Elizabeth Kikuchi, for the Respondent, Public Works and Government Services Canada

2006 CHRT 27

CHRT

Powell v. United Parcel Service Canada Ltd.

en

2006-06-05

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6808/index.do

2023-12-01

Powell v. United Parcel Service Canada Ltd. Collection Canadian Human Rights Tribunal Date 2006-06-05 Neutral citation 2006 CHRT 27 File number(s) T981/10104 Decision-maker(s) Sinclair, Grant, Q.C. Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE ESPER POWELL Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - UNITED PARCEL SERVICE CANADA LTD. Respondent RULING 2006 CHRT 27 2006/06/05 MEMBER: J. Grant Sinclair [1] Esper Powell, the complainant in this matter, filed a complaint dated January 16, 2002 alleging discrimination by the respondent, United Parcel Service Canada Ltd., contrary to ss. 7 and 10 of the Canadian Human Rights Act. The complainant alleged occurrences of discrimination in 1990, 1991, 1992, 1996 and 2001. [2] The respondent, by motion dated January 3, 2005, (supporting affidavit dated March 31, 2006) requested in paragraph (a) of the motion, that the Tribunal order that the only allegation of discrimination referred to the Tribunal for inquiry in respect of the complaint relates to the alleged incident on July 20, 2001. [3] The Commission has prepared two Investigation Reports, dated May 21, 2003 and February 18, 2004. The May 21, 2003 Investigation Report concluded that the alleged incidents of discrimination in 1990, 1991, 1992 and 1996 are out of time. The Report recommended that the Commission investigate only the July 20, 2001 allegation of discrimination. [4] The Commission did so and the February 18, 2004 Investigation Report is the product. The Report focused on the July 20, 2001 occurrence and recommended that failing conciliation, the complaint be referred to the Tribunal for inquiry. It was referred by the Commission to the Tribunal on August 19, 2004. [5] It is clear that the alleged incident of discrimination investigated by the Commission and referred to the Tribunal for an inquiry was that on July 20, 2001. [6] The complainant agrees with this. In his June 15, 2005 fax, complainant counsel, wrote: ...I've met with Ms. Powell in connection with your motion materials. She instructed me to agree that the only complaint referred to the Tribunal for determination is the one for July 20, 2001. However, she does not instruct me to agree that UPS not have to respond to the allegations prior to July 20, 2001. [7] This question was also considered in the January 15, 2005 teleconference, between the Tribunal and counsel for both parties. At that time, both counsel agreed to an Order confirming that the only complaint which has been referred to the Tribunal for inquiry and determination in respect of the Applicant, Esper Powell's Complaint, relates to the alleged incident on July 20, 2001, and not otherwise. [8] Turning to another matter, in complainant counsel's May 10, 2006 fax responding to the motion, counsel advised that the complainant has launched a new complaint against the respondent alleging further discrimination. Counsel requested that this complaint be dealt with together with the complainant's January 16, 2002 complaint. [9] The Tribunal can only inquire into complaints that have been referred to it by the Commission. The Commission has referred only the January 16, 2002 complaint to the Tribunal. The Tribunal has no jurisdiction to join or hear any other complaint that may have been filed with the Commission. ORDER The Tribunal orders that the only allegation of discrimination in the January 16, 2002 complaint that has been referred to the Tribunal for inquiry is that relating to the alleged July 20, 2001 incident; The Tribunal further orders that each party provide, no later than June 30, 2006, dates in either November or December 2006 or January 2007 for the hearing of the complaint. It is expected the hearing will take a maximum of five days. Signed by J. Grant Sinclair OTTAWA, Ontario June 5, 2006 PARTIES OF RECORD TRIBUNAL FILE: T981/10104 STYLE OF CAUSE: Esper Powell v. United Parcel Service Canada Ltd. RULING OF THE TRIBUNAL DATED: June 5, 2006 APPEARANCES: Esper Powell For herself (No representations made) For the Canadian Human Rights Commission Douglas F. Best For the Respondent

2006 CHRT 28

CHRT

Warman v. Harrison

en

2006-06-13

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6805/index.do

2023-12-01

Warman v. Harrison Collection Canadian Human Rights Tribunal Date 2006-06-13 Neutral citation 2006 CHRT 28 File number(s) T1072/5305 Decision-maker(s) Doucet, Michel Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE RICHARD WARMAN Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CRAIG HARRISON Respondent RULING 2006 CHRT 28 06/06/13 MEMBER: Michel Doucet [1] At the opening of the hearing, Mr. Marc Lemire, a potential witness, represented by counsel Barbara Kulaszka, filed a motion asking the Tribunal to set aside the subpoena it had issued on June 6, 2006, requiring Mr. Lemire to attend and give evidence at this hearing. The subpoena further required Mr. Lemire to produce all information within [his] possession relat[ing] to the use of the pseudonyms rump and realcanadianson on the Freedomsite message board. The information sought would include, but was not limited to, all the information identified by Mr. Lemire in paragraph 5 of an attached request by the Complainant for the issuance of a subpoena for Marc Lemire. [2] Ms. Kulaszka opposed the issuance of the subpoena on the grounds that it was unnecessary to the full hearing before the Tribunal, that Mr. Lemire had no material evidence to give to the Tribunal which was not already before it and that the subpoena was an abuse of process by the Complainant. [3] The Tribunal's authority to issue a subpoena is contained in section 53(3)a) of the Canadian Human Rights Act which provides: 53 (3) In relation to a hearing of the inquiry, the member or panel may (a) in the same manner and to the same extent as a superior court of record, summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath and to produce any documents and things that the member or panel considers necessary for the full hearing and consideration of the complaint [4] The issuance of a subpoena by this Tribunal is not an administrative act. The Tribunal has the discretion to issue or not a subpoena. Under section 50(3)(a) of the Act, a member or panel may issue a subpoena if the member or panel considers it necessary for the full hearing and consideration of the complaint (CTEA v. Bell Canada, T503/2098, ruling #2). The threshold to meet is not very heavy. First, there has to be a rational connection between the evidence that the potential witness is to give and the issues before the Tribunal. The request must not be speculative or amount to a fishing expedition. Finally, the request should not be oppressive. [5] After she took into consideration the request of the Complainant, the Tribunal member Karen Jensen, felt that the evidence of Mr. Lemire was necessary for the full hearing and consideration of the complaint and she agreed to issue a subpoena. I see no reason to set this decision aside. I find in the present case that the proposed evidence to be given by Mr. Lemire, as submitted in the Complainant's request for a subpoena, is relevant to the issues in this hearing. The Complainant has established that there is a connection between the proposed evidence to be given by the witness and the issues in dispute. [6] Counsel for Mr. Lemire has not convinced me that the evidence of her client is unnecessary and she has also failed to convince me that the issuance of the subpoena was an abuse of process. The question of whether the evidence is relevant or material will be a question for me to decide. [7] Mr. Warman, during his reply to Ms. Kulaszka's motion, indicated that he would be satisfied if Mr. Lemire would agree to provide affidavit evidence. Ms. Susen Holmes, representative of the Respondent, did not object to this procedure. Although I am not ready to order that the evidence of Mr. Lemire be introduced by way of affidavit, I strongly urge the parties to consider this avenue. The Complainant and the Commission could forward to Ms. Kulaszka a series of questions by 4:00 p.m. Tuesday, June 13, 2006, and the answers could be provided by affidavit at the same time on Wednesday, June 14, 2006 and be introduced into evidence on the morning of Thursday, June 15, 2006. [8] At this time, the request of Ms. Kulaszka that the subpoena served on Mr. Marc Lemire be set aside is rejected. Mr. Lemire will be compelled to attend before the Tribunal at a date and time which will be indicated at the start of the hearing on Tuesday morning and notified to his solicitor, unless the parties are ready to agree on an alternate procedure. Signed by Michel Doucet OTTAWA, Ontario June 13, 2006 PARTIES OF RECORD TRIBUNAL FILE: T1072/5305 STYLE OF CAUSE: Richard Warman v. Craig Harrison DATE AND PLACE OF HEARING: June 13, 2006 DECISION OF THE TRIBUNAL DATED: APPEARANCES: Richard Warman For himself Giacomo Vigna For the Canadian Human Rights Commission Susen Holmes Craig Harrison For the Respondent, Craig Harrison

2006 CHRT 29

CHRT

Centre for Research-Action on Race Relations v. www.bcwhitepride.com

en

2006-06-26

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6849/index.do

2023-12-01

Centre for Research-Action on Race Relations v. www.bcwhitepride.com Collection Canadian Human Rights Tribunal Date 2006-06-26 Neutral citation 2006 CHRT 29 File number(s) T1120/0206 Decision-maker(s) Jensen, Karen A. Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE CENTRE FOR RESEARCH-ACTION ON RACE RELATIONS Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - WWW.BCWHITEPRIDE.COM Respondent RULING 2006 CHRT 29 2006/06/26 MEMBER: Karen A. Jensen [1] This is a ruling on two motions. The first motion was brought by the Canadian Human Rights Commission to change the name of the Respondent from www.bcwhitepride.com to BC White Pride Group associated with website www.bcwhitepride.com, and to add two new Respondents, Mr. John Beck and White Renegade Group. The second motion is a request by Mr. Beck to dismiss the complaint against www.bcwhitepride.com without a hearing. Although Mr. Beck was not named as a respondent to the complaint, the Commission identified him as the appropriate individual to whom the Tribunal should send correspondence intended for the responding party. [2] In his motion, Mr. Beck argues that www.bcwhitepride.com is not a person or group of persons within the meaning of section 13(1) of the Canadian Human Rights Act. He argues that the complaint therefore should be dismissed without a hearing. The complainant, Centre for Research-Action on Race Relations, did not make any submissions on the motions. [3] For the reasons that follow, I have decided to adjourn the motions without prejudice to, or in any other way affecting the rights of the parties to bring these motions again at any time during the hearing. [4] Firstly, the fact that the Respondent's name includes .com does not, on its own, constitute grounds for an automatic dismissal of the complaint against that Respondent. Rather, the question is whether there is any evidence to indicate that www.bcwhitepride.com is the name of a person or group of persons acting in concert. In Warman v. Kulbashian 2006 CHRT 11, the Tribunal found, on the basis of the evidence presented during the hearing, that despite the presence of .com in its name, the respondent Affordable Space.com was a person within the meaning of s. 13(1) of the Act. There was evidence that Affordable Space.com was a firm that provided web services that enabled the impugned messages in that case to be disseminated over the Internet. In contrast, in that same case the Tribunal found no evidence to indicate that the named respondent www.tricityskins.com was anything more than the name of a website. As a result, the complaint against www.tricityskins.com was dismissed. [5] In the present case, there are conflicting facts and issues that require further inquiry before a determination can be made regarding the nature of the Respondent www.bcwhitepride.com. The Commission has filed the affidavit of Mr. Shane Martinez in support of its position on the motions. In his affidavit, Mr. Martinez deposes that, as part of his work in the area of human rights and social justice activism, he monitors the Internet. During the course of his monitoring activities, Mr. Martinez became aware of www.bcwhitepride.com and www.whiterenegade.com. Mr. Martinez deposed that he communicated directly with Mr. Beck regarding the websites. On the basis of those communications, Mr. Martinez asserts that BC White Pride is a group that was co-founded by Mr. John Beck and that Mr. Beck wrote much of the content of the group's website found at www.bcwhitepride.com. [6] On behalf of Mr. Beck, it is argued that Mr. Martinez's affidavit evidence is highly questionable and does not establish that there is a person or groups of persons acting in concert by the name of BC White Pride Group or www.bcwhitepride.com. Mr. Beck did not submit an affidavit and to date, there has been no cross-examination on the Martinez affidavit. [7] In my view, the evidentiary record before me at this time is insufficient to resolve the factual and legal issues that are necessary to determine whether the Respondent www.bcwhitepride.com is a person or group of persons acting in concert within the meaning of s. 13(1) of the Act. [8] The second reason to adjourn the present motions until the hearing relates to the Tribunal's concerns about dismissing a complaint without a hearing. Section 50(1) of the Act stipulates that after notice has been given to the appropriate parties, the member or panel shall inquire into the complaint and shall give all parties a full and ample opportunity to appear at the inquiry, present evidence and make representations. In fact, the Tribunal has dismissed complaints without a hearing in very few cases and then only on the basis of the doctrines of issue estoppel or abuse of process (Cremasco v. Canada Post Corporation 2002/09/30 - Ruling No. 1, aff'd 2004 FCA 363; Toth v. Kitchener Aero Avionics 2005 CHRT 19; O'Connor v. Canadian National Railway 2006 CHRT 05). In those cases, the Tribunal held that the issues raised in the complaint had been the subject of a final judicial determination in another forum. Therefore, it was determined that a full and ample opportunity had been provided to all concerned to raise the human rights issues in another forum. The Tribunal has stated that it is only in the clearest of cases that a complaint may be dismissed without a hearing on the basis of the doctrines of issue estoppel or abuse of process (Cremasco, supra, at para. 106). [9] Such is not the case in the present matter. There has been no prior determination of the issues raised in this case. In fact, the circumstances in this case are more akin to those in Bozek v. MCL Ryder [2002] C.H.R.D. No. 34, where the respondent sought to have the complaint dismissed without a hearing on the basis of delay and the prejudice arising from that delay. In that case, the Tribunal ruled that there were facts and issues in dispute that required that there be a full evidentiary record before a decision could be made as to whether the complaint should be dismissed on the basis of delay. Therefore, the Tribunal ruled that the motions would be adjourned until the hearing of the complaint. [10] Similarly, in the present case, there are facts and issues in dispute that require further inquiry. In response to Mr. Beck's assertion that there is no evidence to suggest that www.bcwhitepride.com is a person or group of persons acting in concert, the Commission argues that to dismiss the complaint without a hearing on the basis of the technical objection that the Respondent may not have been properly named would defeat the purpose of the Act. All that may be needed is to substitute the named Respondent www.bcwhitepride.com with BC White Pride Group associated with the website www.bcwhitepride.com. However, the question of whether the Tribunal has the authority to make such a substitution has not been argued. Moreover, the parties disagree as to whether an evidentiary basis exists for such a change to be made. [11] In the circumstances of the case, I do not see how this Tribunal can decide the Respondent's motion to dismiss the complaint at this time. Similarly, I do not see how the Tribunal can determine at this time, whether BC White Pride Group associated with the website www.bcwhitepride.com can be substituted for the currently named Respondent. The two issues are related and must, in my view, be determined on the basis of a proper evidentiary record. [12] With regard to the addition of the two other parties, White Renegade Group and John Beck, the Commission is free to raise this issue at the hearing if it so chooses. Signed by Karen A. Jensen OTTAWA, Ontario June 26, 2006 PARTIES OF RECORD TRIBUNAL FILE: T1120/0206 STYLE OF CAUSE: Centre for Research-Action on Race Relations v. www.bcwhitepride.com RULING OF THE TRIBUNAL DATED: June 26, 2006 APPEARANCES: No submissions made For the Complainant Giacomo Vigna For the Canadian Human Rights Commission Paul Fromm For the Respondent

2006 CHRT 3

CHRT

Mellon v. Human Resources Development Canada

en

2006-01-25

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6480/index.do

2023-12-01

Mellon v. Human Resources Development Canada Collection Canadian Human Rights Tribunal Date 2006-01-25 Neutral citation 2006 CHRT 3 File number(s) T928/4804 Decision-maker(s) Doucet, Michel Decision type Decision Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE MARY MELLON Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - HUMAN RESOURCES DEVELOPMENT CANADA Respondent DECISION 2006 CHRT 3 2006/01/25 MEMBER: Michel Doucet I. INTRODUCTION II. HISTORY OF THE COMPLAINANT'S EMPLOYMENT WITH THE RESPONDENT III. THE EVENTS OF APRIL TO AUGUST 2001 IV. THE EVIDENCE OF DOCTOR CHARANJEAT MANDER V. LEGISLATION VI. THE ISSUES VII. LEGAL ANALYSIS VIII. CONCLUSION I. INTRODUCTION [1] On May 27, 2002, Mary Mellon (the Complainant) filed a complaint under section 7 of the Canadian Human Rights Act (the Act) against Human Resources Development Canada (the Respondent). In her complaint she alleged that the Respondent engaged in a discriminatory practice on the ground of disability in a matter related to employment. [2] The Complainant alleges that she suffers from a disability; more specifically, she testified that she suffers from panic and anxiety attacks. She further asserts that a series of events related to these attacks occurred in the workplace between April 17 and August 30, 2001, creating conditions that led to the Respondent's decision not to renew her contract. [3] During the hearing, the parties requested that the issue of liability and the issues of damages and relief, if any, be dealt with separately. I agreed to the bifurcation of the hearing. Therefore, this decision will deal only with the issue of liability. Since I have found the complaint to be substantiated, another hearing will be ordered to deal with the issues of damages and relief. II. HISTORY OF THE COMPLAINANT'S EMPLOYMENT WITH THE RESPONDENT [4] The Complainant started working for the Respondent on November 25, 1991 as a term employee. She held the position of CR-03, Reception and Enquiries in the Respondent's Hamilton office. This employment was to end on December 31, 1991 but three term extensions were granted. It finally terminated on May 1, 1992. [5] She was given another term appointment on December 31, 1992, at the same position and classification. This term ended on March 31, 1993. A new term appointment, at the same position and classification, was made on December 2, 1993, with two more extensions, one on December 30, 1993, and another on March 1, 1994. This period of employment terminated on March 23, 1994. [6] The Complainant testified that she enjoyed her work in this position. She added that the workplace provided a happy and pleasant environment. A letter of recommendation, dated December 7, 1993, prepared by the Respondent's Supervisor of Employment Services, referred to the Complainant as an employee who diligently carr[ies] out her duties with efficiency and effectiveness and as a pleasant individual who is easy to work with. [7] On July 28, 1994, the Complainant was offered another term of employment, this time in the Respondent's Burlington Office. This was again a CR-03 position. Two other term extensions were offered to the Complainant in this position, one on October 6, 1994 and the other on December 29, 1994. The last term came to an end on March 22, 1995. [8] On February 24, 1995, her supervisor in the Burlington Office, Mr. Rick Levert, wrote that the Complainant has proven herself to be a most reliable and dependable worker. He further added that [s]he adapted well to the routine of our office and has become a valuable member of our staff in the short time she has worked here. Her pleasant manner and friendliness enabled her to quickly gain the respect of other staff members and her helpful and accommodating attitude towards working with others has been a positive influence for our office. [9] In the summer of 1997, the Complainant was contacted by Ms. Marg Garey, manager of the Respondent's Oakville office. They had previously met in 1991 when the Complainant was working in the Hamilton Office. Ms. Garey offered the Complainant term employment in the Oakville office. The Complainant accepted, and from July 7, 1997 up to September 25, 1997, she worked in a CR-04 position, as a Client Service Representative. The difference between a CR-03 and a CR-04 job classification is that a CR-04 job involves more decision-making and multi-tasking. [10] According to the Complainant, this position was very challenging. She added that although she enjoyed her work, at one point it became too much for her and it started to affect her health. On October 29, 1997, she saw Dr. Charanjeat Mander, who was filling in for her regular family doctor. Dr. Mander eventually became the Complainant's family doctor. Dr. Mander decided to put the Complainant off work for a period of three weeks. She also prescribed Paxil, an antidepressant. The Complainant was on sick leave from October 17 to November 14, 1997. The memo in her file indicated emotional stress related to work/cannot cope, unable to work until further notice. [11] The Complainant testified that she had informed her manager of her medical condition. She referred to a telephone conversation they had around that period. Her understanding of this conversation was that Marg Garey understood what she was dealing with. She added that she had informed her manager that she was on antidepressants and that they were having a really bad effect on her. She said that she indicated that under these circumstances she could not return to the workplace. Marg Garey testified that she had no recollection of this conversation. [12] The Complainant returned to work on November 17, 1997. On February 2, 1998, Ms. Garey offered the Complainant a lower level deployment to a CR-03 (Program Support Clerk) position. The Complainant said that she accepted this lower level deployment because it provided a more stable environment. [13] The Complainant was again hired, on a term basis, at the Oakville office at a CR-03 level, as service delivery support clerk, on May 11, 2000. This CR-03 position is referred to as her substantive or home base position. This appointment was renewed without break in employment, on July 7 and September 22, 2000 and on March 30, 2001. As of July 9, 2001, she was still working under this term but acting in another position at the CR-4 level, as a service delivery assistant. [14] The workplace was described as being self-directed, meaning that employees were being asked to sort out any problems within their team. This also meant that when someone was absent in the unit, then the unit had to work together to cover that absence. [15] According to the organizational chart dated July 9, 2001, the Oakville office had seven service delivery assistants at the CR-04 level and thirteen and a half program officers. During the summer period the number of program officers was actually inflated by four because of the summer career placement program. These four additional officers were only temporary and would have been gone by the Fall. III. THE EVENTS OF APRIL TO AUGUST 2001 [16] Ms. Debby McIntyre was appointed service delivery manager at the Oakville office on April 17, 2001, to replace Marg Garey. She then asked Rick Levert, the service delivery coordinator, to oversee both the Foreign Worker Unit and the Labour Market Information Unit in addition to the in-person services. [17] Mr. Levert described this period as a transition stage. He added that one of the proposed changes was to work the Complainant into becoming the service delivery support person for the Foreign Worker Unit. This was a change for both the Unit and the Complainant since the Unit had never had a dedicated support person until that time. Prior to that period, the Complainant and Diann Luksa were handling the support functions for the Unit. The decision to make these changes was taken by Debby McIntyre, Dal Swackhammer, the supervisor of the Program Unit and Mr. Levert. Mr. Levert did not recall having any special conversation with the Complainant about these changes. [18] Debby McIntyre kept notes of her various meetings with the Complainant and other employees. She stated that it was her practice to make notes of meetings with employees. She would write her notes immediately following these meetings. These notes were very helpful in reconstructing the events of that period as the recollection of the various witnesses had become, in many cases, blurred by the passing of time. [19] Prior to April 17, 2001, Ms. McIntyre admitted that she had no knowledge that the Complainant had had any problems performing her duties. She also admitted that the Complainant's work performance never came up in her discussions with Marg Garey when she took over her position in Oakville. [20] The Complainant first met with her new supervisor on June 21, 2001. According to Debby McIntyre's notes, this meeting was requested by the Complainant. Her notes further indicate that the Complainant told her during this meeting that she was experiencing a reoccurrence of a health issue in the area of her neck which was causing her stress and anxiety. The Complainant admitted that she had had a growth removed in the area of the neck in March 2000. [21] Debby McIntyre also noted that the Complainant told her that she had consulted her doctor but had not shared with her the full extent of her situation and concerns for fear the doctor would advise her to stop working. Ms. McIntyre added that the Complainant indicated that in the past she had not given her former manager, Marg Garey, all her medical notes, choosing instead to ignore the advice of her doctor to take sick leave during previous illnesses. The Complainant disagreed with this statement, saying that she had never ignored a medical certificate issued by her doctor. She added that it was true that she was hesitant about taking medication because of the bad reaction she had had in the past while on medication. [22] On June 25, 2001, Ms. McIntyre met with Monica Kington and Esther Davis, two officers in the Foreign Workers Unit. In her notes, she states that they came to her office to let her know that they had some concerns regarding the Complainant. She noted they had observed that although the Complainant was at her work station, her work was piling up and was not getting done. [23] On June 27, 2001, the Complainant was invited to a meeting with Monica Kington, Esther Davis and Pat Richard, all officers of the Foreign Workers Unit. The purpose of the meeting was to discuss how to deal with the extra workload in the unit which was created by the fact that Diann Luksa was on sick leave. Ms. Luksa was absent from work from June 18 to July 13, 2001. During the meeting the Complainant was asked if she would take on the extra work. She testified that she tried to discuss her health but that Monica Kington replied that they didn't need to hear that. Monica Kington testified that she had no recollection of this exchange. She added that she remembered that the Complainant was upset during this meeting and that she indicated that she wanted to speak with her supervisor. Pat Richard testified that the Complainant had indicated that she would not do the work. The Complainant said that at the end of the meeting she agreed to take on this extra work. [24] The Complainant stated that following this meeting, she felt that the perception of her co-workers was that she did not want to do her work. She felt that because of this, her relationship with them was falling apart. [25] Immediately following this meeting, the officers went to Ms. McIntyre to give her some feedback. Ms. McIntyre noted that they had concerns that the Complainant did not want to join or participate in the meeting and that she became agitated and upset. Ms. McIntyre was also informed that the Complainant had raised issues regarding her health during this meeting. During her cross-examination, Ms. Kington said that she had not given this information to Ms. McIntyre. Pat Richard did not recall any discussions regarding the Complainant's health during that meeting. Since Esther Davis did not testify, I either have to accept that she is the one that told Ms. McIntyre that this issue was discussed at the meeting or that both Ms. Kington and Ms. Richard do not have a proper recollection of what was said at that meeting. Ms. McIntyre certainly did not make this up and I conclude that the Complainant's health was raised at the meeting and afterwards discussed with Ms. McIntyre. [26] Ms. McIntyre added that the fact that someone ended up being upset was not helpful in finding a solution to how the work would get done. She further noted that the officers had indicated that the Complainant seemed to like doing the lower priority work, like mailing out kits and typing letters, instead of doing data input. At that point, she indicated that she was mainly preoccupied with understanding what was needed operationally to get the work done, but did not become directly involved. [27] Pat Richard also met with Rick Levert to inform him about what was discussed during this meeting. On cross-examination, Mr. Levert said that he was not aware that it was during this meeting that the Complainant was first informed that she was to assume all the duties of the Foreign Worker Unit. He added, that while he could not remember when, she must have been informed of these changes before that meeting, though probably not formally. However, he agreed that it was possible that this issue came up for the first time at that meeting. [28] The Complainant testified that the added workload started to have an effect on her health. By the end of June 2001, she said that she was experiencing anxiety attacks and was feeling very stressed. She added that she did not have the skills to do Ms. Luksa's job, although she did attempt to do it. She felt that she was letting down the officers of her unit because she was unable to complete all of her work. Up until then she had been responsible for the live-in caregiver applications which, in her words, were simpler to learn. She was now expected to do the industrial applications data entry for which she says she had no training except for maybe twenty minutes with Diann Luksa. [29] The Complainant described her anxiety attacks as causing difficult[y] to breathe and think clearly. She added that they would last from five to ten minutes and afterwards she would be fine. The Complainant said that on or about June 28, 2001, she had explained her situation to her supervisor, Rick Levert. Mr. Levert testified that during this meeting the Complainant was very emotional. She kept repeating that she felt that they were taking the jobs of two people and compressing them into one. He said that he tried to explain that the duties were reasonable for one person to perform. The issue of training was also discussed. He indicated that she did make reference to the fact that she could not let her health be negatively affected by her work. He also added that she had indicated that she was seeing her doctor and that after she had seen her she would get back to him. [30] On June 28, 2001, the officers met again with Ms. McIntyre. Ms. McIntyre's notes indicate that there was then a real concern in the unit. The officers told her that the Complainant had gone home sick without telling them, which, according to Ms. McIntyre, would be the normal practice. She added that at that time she was looking at this whole issue of controllables and knowing that Mary was perhaps dealing with a previous health condition, a recurrence of this neck situation... and I didn't know what that was. You know, my mind was taking me to tumours and things like that? She further added I looked at what Mary's job was in the Foreign Workers Unit and I looked at what the jobs were in talking with the other supervisors and the other clerk... I was trying to do an analysis of what is the best clerical job in the office in terms of controllables, in terms of flexibility, stress level. It is clear that by this time Ms. McIntyre knew that there was a health issue, although she did not know the extent, and that this health issue was having an impact on the Complainant. [31] The Complainant left a voice mail with Ms. McIntyre on June 29, informing her that she would not be at work since she was not doing well. She also mentioned that she needed to resolve some issues before returning to work. On that same day, she saw Doctor Huschilt, who at that time was covering for Doctor Mander. She was then complaining of neck pains and stress at work. Doctor Huschilt decided to send her for x -rays of her neck. He also prescribed Flexeril, a muscle relaxant, and Tylenol, an analgesic. [32] Rick Levert also received a voice mail from the Complainant on June 29, 2001. She informed him that her doctor had put her off work indefinitely and that she would keep him up to date. He also received a medical note dated June 29, 2001 from Dr. Mander indicating that she was under medical care and unable to work. [33] The Complainant was absent from work from June 30, 2001 to July 23, 2001. A medical note dated July 19, 2001 indicated work stress. The Complainant added that she had given this medical note to her employer. [34] Rick Levert contacted the Complainant on July 3, to inquire about the length of her absence. On July 9, the Complainant left a voice mail for Rick Levert in which she indicated that she hadn't received the test result from her doctor. She also added that it might be possible for her to come back to work soon but before she returns however, if she does return back, she does need to clarify a few things. On cross-examination, the Complainant explained that what she was referring to in this voice mail was the problem she was experiencing with the workload and the stress this was causing her. [35] On her return to work on July 23, 2001, she said she felt that nothing had changed. According to the Complainant, the attitude of management was that her position could be done by one person. The Complainant testified that during this period she was trying desperately to hold on to her job. She added that she felt really bad because the relationship that she had with her co-workers in the unit had disappeared. [36] She said that she met Rick Levert on July 25, 2001. The Complainant added that she got the feeling from this meeting that there would not be any help with her workload. The message she was getting was that her job was doable by one person. [37] Rick Levert took notes of this meeting. This was the first time that he took notes of a meeting with the Complainant. He said that he felt that the situation was getting complicated and that after discussing the matter with Debby McIntyre they had decided that it would be a good idea to take notes of these meetings. During this meeting he noticed that the Complainant was not as emotional as the previous meeting. He added that she seemed more determined. She informed him that her health was not good and that this was a permanent condition. She felt that her illness was work-related. Mr. Levert remembers telling her that the duties associated with her job were reasonable. He also remembers discussing with her the question of her reverting back to her CR-03 job. He advised her that in the new organization of the office, that job was no longer required. The Complainant was very definite that she could not handle the job and that she had decisions to make. Mr. Levert did not ask her to elaborate on her medical condition. [38] The Complainant wrote a note to Rick Levert and to Debby McIntyre on July 26, 2001. She was requesting clarification regarding her duties and responsibilities. She also mentioned that she wanted this issue solved as the health problem due to the stress/workload in the past is now returning and [the] extra workload has contributed to this problem. [39] On that same day, Rick Levert met with Monica Kington, Esther Davis and Pat Richard to discuss the operational working of the Unit. Mr. Levert made some notes of this meeting. Most of these notes refer to the performance of the Complainant in the Unit and are observations made by her co-workers. [40] Debby McIntyre was away on vacation from July 23 to August 7, 2001. On her return, the Complainant was starting her two weeks' vacation, so, as Ms. McIntyre stated, they were like two ships passing in the night. [41] On August 8, 2001, Ms. McIntyre prepared another note which reflects a visit to her office by Esther Davis. Ms. Davis related to her that since the Complainant's return to work from her sick leave, she had observed that she had resumed her duties to a degree and that she was working at about 50% of her normal productivity level. Ms. Davis, according to the note, also referred to a meeting between the Complainant and Rick Levert on July 25 where she observed that the Complainant burst into tears. Rick Levert testified that this did not happen during the July 25 meeting, but at the previous meeting, on June 28, 2001. [42] On August 9, 2001, Ms. McIntyre wrote a memo to the Complainant answering the Complainant's note of July 26, 2001. She informed the Complainant that Rick Levert had reviewed her job duties, in consultation with other staff members, and had come to the conclusion that the job was reasonable for one person. She further added: I share your concerns regarding your health, and want to discuss your concerns. [43] The Complainant returned from her vacation on August 20, 2001, and on that day she met with her manager. At this meeting, Debby McIntyre presented to the Complainant a copy of the memo she had prepared on August 9, 2001. The Complainant testified that her manager looked irritated and seemed frustrated that she was still requesting help. The Complainant recalls having discussed her health condition with her manager during this meeting but stated that she received no suggestions from her on how to approach this problem. She said that she had taken that extra step to explain to her manager that she was suffering from anxiety attacks and stress. The Complainant testified that she left this meeting feeling very upset and convinced that her job in the Oakville office was gone. [44] According to Debby McIntyre's notes, the Complainant indicated that while she felt that she was capable of doing the whole job, she still felt that her health was an issue. She added that the Complainant mentioned that she would do her best and see how her health would hold out. The Complainant told her that she was suffering from increased anxiety attacks which were triggered by job-related stress. According to Ms. McIntyre, this was the first time that the Complainant had mentioned this to her. [45] Esther Davis and Monica Kington approached Debby McIntyre on August 21, 2001, regarding the Complainant. Again according to Ms. McIntyre's notes, they were observing that although the Complainant appeared very busy her work was lagging behind. They indicated that they were having difficulties with her ability to set priorities and to perform her duties. [46] On August 23, 2001, the Complainant went back to see her manager to bring her the statistics she had compiled regarding the phone calls she had to deal with in the Foreign Workers Unit. According to the Complainant, her manager told her that she was too busy to deal with them and told her to bring this matter up with Rick Levert. In her evidence, Debby McIntyre does not disagree with this. In her note, she indicates that the Complainant was teary during this meeting. She added that she inquired how she was doing and the Complainant answered that she was not doing very well and that she had to make some decisions about her job and her health. Ms. McIntyre added that she did encourage the Complainant to see her doctor and to take time off if that is what she needed. [47] August 30, 2001 was the Complainant's last day at work. The Complainant recalls that the files kept piling up and that she was getting sicker and sicker. She also recalls that Pat Richard was getting upset that she wasn't getting through the files. She testified that on that day she had a lot of Foreign Recruitment files for the industrial applications which needed attention. She remembers sending an e-mail to Debby McIntyre at 8:05 a.m., requesting help with these files because there was a deadline and they needed to be dealt with. [48] In her written notes of that day, Ms. McIntyre indicates that she went over to the Complainant's work station after she received the e-mail. The Complainant mentioned that she was still having problems with some of the filing. Ms. McIntyre then indicated that Pat Richard was busy and that she would ask Diann Luksa to help her. Around 10:45 a.m., she noted that Glen Harris, a co-worker of the Complainant, told her that the Complainant was in the lunch room crying. She added that she went over to get the Complainant and offered her office to help her compose herself before she was driven home. The Complainant said to her that she was having an anxiety attack. After she had calmed down, she added that the CR-04 job was just too much for her. She also indicated that her health was being affected and that she could not continue working. [49] The Complainant testified that during this attack, she was having difficulty breathing and that she felt as if she was going to pass out. She added that she was shaking, that she was emotionally upset and that she could not think clearly. She further added that this was not the first time that she had experienced a panic attack during that summer. These attacks would last for about ten minutes and afterward she would feel unwell. [50] In her evidence, Ms. McIntyre stated that she asked the Complainant whether she had seen her doctor recently and the Complainant indicated that she had the day before and that the doctor wanted her to take some medication. Ms. McIntyre testified that she encouraged the Complainant to see her doctor again as soon as she could and to seriously reconsider the medication. [51] Ms. McIntyre indicated in her notes of August 30, 2001 that she had told the Complainant that she felt that, for her own well-being as well as the functioning of the unit, she could not offer her the CR-04 job after September 30, 2001. During her examination, she added that she didn't want the Complainant leaving that day thinking that she had to come back to that job. Ms. McIntyre also stated that she informed the Complainant that there were no CR-03 jobs available for her in the Oakville and Burlington offices. She offered to approach the corporate services manager of the Respondent in Mississauga East to see if there might be CR-03 opportunities elsewhere. [52] On September 28, 2001, the Complainant received a letter from Debby McIntyre informing her that her current term CR-03 contract was extended for one month as an interim staffing measure, in order to make you aware of other CR-03 vacancies in Peel-Halton-Dufferin, and market you accordingly, if you wish. [53] On October 10, 2001, Debby McIntyre had a telephone conversation with the Complainant at which time she told her that there was possibly a CR-03 position in the Mississauga West office of the Respondent. The Complainant said that she would be happy to meet with Vicky Shea, the manager of that office, to discuss this possibility but she never heard from Ms. Shea. [54] On October 22, 2001, the Complainant wrote a letter to Ms. McIntyre in which she referred to her employer's obligation to accommodate her. She was requesting to be kept on leave without pay until she was well enough to return to work. [55] She received an answer to this letter on October 29, 2001. Her manager stated, amongst other things, [t]he Duty to Accommodate pertains to technical aids in the context of workplace accommodation for persons with disabilities - and I believe there is some confusion in your suggestion that accommodation includes contract extensions, in a location where there is no job. [56] On May 27, 2002, the Complainant filed a complaint with the Canadian Human Rights Commission. IV. THE EVIDENCE OF DOCTOR CHARANJEAT MANDER [57] The only medical evidence presented by either party was that of Dr. Charanjeat Mander, the Complainant's family doctor. [58] Dr. Mander studied medicine at the Christian Medical College, in the City of Ludhiana, Punjab, India, where she obtained her medical degree in 1965. After her graduation, she moved to Glasgow, Scotland, with her husband, where she did one year of residency in psychiatry. In 1974, the family moved to Canada where she did her internship in internal medicine at St. Joseph Hospital (now the Queensway Health Centre) in Toronto. In 1979, after having successfully passed her licensing exam, she started her medical practice, in Burlington, where she has been practicing as a general practitioner ever since. [59] Dr. Mander was qualified as an expert in general family clinical practice and was allowed to give opinion evidence as the treating physician of the Complainant. [60] According to Dr. Mander, anxiety is a very common complaint in a practice such as hers. She added that because of the shortage of psychiatrists, general practitioners play an important role in treating people with anxiety. The most common symptoms of anxiety are nervousness, palpitations and lack of sleep. Normally, when a patient comes forward with these symptoms, the doctor must listen to them carefully and identify the reasons for the anxiety. In such cases the patient's history is the most important thing. [61] Dr. Mander indicated that she would, in these cases, recommend first rest or a few days off work. The second step in the treatment would be to prescribe a mild tranquillizer, for example Ativan. She said that she would usually prescribe, at this stage, five milligrams sublingual to see how the patient responds. If this does not work she would consider moving up to a stronger tranquillizer. The third step would be to refer the patient to a specialist. [62] Dr. Mander testified that she first saw the Complainant, as her family doctor, on October 5, 1999, although she had seen her on October 29, 1997, when she was replacing the Complainant's previous family doctor. [63] Dr. Mander's clinical notes indicate that the Complainant was seen on June 26, 2001, by Dr. Huschilt, who at the time was covering her practice. In her notes she indicates that Dr. Huschilt mentioned that during this visit the Complainant complained of neck pain and stress at work. The Complainant again saw Dr. Huschilt on June 29, 2001, complaining of stress at work. Dr. Huschilt's diagnosis was anxiety and he prescribed time off-work. [64] Dr. Mander saw the Complainant on July 19, 2001. She noted stress at work - too much work. Neck pains. Needs some changes at work. Doing work as two people. Emotional stress. Extremely distraught. At that time the Complainant had been off work since June 29, 2001. The Complainant told Dr. Mander that she wanted to return to work but with some changes in the workplace. [65] The doctor saw the Complainant again on August 3, 2001. Although there is no reference to this in her notes, Dr. Mander testified that the Complainant was still tense. She informed her doctor that she had written to her manager about her work-related problems, but that the manager at that time was on holidays. She told Dr. Mander that she was going to take 10 days of vacation which should help her get a little bit more settled. [66] The Complainant's next appointment was on August 28, 2001. She had just returned to work. In her notes Dr. Mander wrote: Anxiety attacks, palpitations, nervous, shortness of breath once or twice a week [...] typical anxiety. At the hearing, Dr. Mander added that during this visit the Complainant was crying, was very nervous and had shaky hands. The Complainant told her that she was very nervous and had difficulty sleeping. Dr. Mander prescribed Ativan, a tranquillizer, at 0.5 milligrams, sublingual, to be used as required. She also noted that the Complainant was quite upset about her workload. [67] Dr. Mander saw the Complainant again on August 31, 2001. She noted that the Complainant told her that she could not handle her job; that it was too much pressure. She also noted that the Complainant was crying and that she was very upset. The Complainant told Dr. Mander that she did not want to go back to her job under the present circumstances. She wanted management to take away the extra duties which she claims had been given to her. Dr. Mander noted that panic attacks are starting from pressure. She gave the Complainant a note which indicated that she was to stay off work for [an] indefinite period. Extreme stress at job situation. Too much work was loaded on her. [68] The Complainant returned to see her doctor on September 4, 2001. Dr. Mander noted that she was feeling better because she was off work. The Complainant told her doctor that she was sleeping better and had no more panic feelings. Dr. Mander added that the Complainant was not on antidepressants at this time because she was not depressed. [69] On September 10, 2001, Dr. Mander made arrangements to refer the Complainant to a specialist, Dr. V. M. Celine Kumiranayake, a clinical psychiatrist in Burlington. According to Dr. Mander, the Complainant saw Dr. Kumiranayake on September 18, 2001. Dr. Kumiranayake, who is now retired, was not called as a witness. She sent a report of her evaluation of the Complainant to Dr. Mander which she received on September 20, 2001. After this meeting, Dr. Kumiranayake did not see the Complainant again. [70] According to Dr. Mander, Dr. Kumiranayake's diagnosis of the Complainant was acute panic attack secondary to work related stress. In her report, Dr. Kumiranayake wrote [t]his lady seems to have had an Acute Panic Attack secondary to Work Related Stress. (Emphasis added) [71] The next notation by Dr. Mander is for September 25, 2001. The doctor noted that the Complainant was feeling happier, had a positive attitude and no panic. The Complainant told her doctor that she didn't want to take any medication as she was now feeling better. [72] On October 18, 2001, the Complainant again saw Dr. Mander. According to the doctor's notes, she was beginning to feel stress due to some problems with [the] employer...regarding disabilities. Dr. Mander did not make any physical observations of the Complainant. [73] The next appointment was on November 9, 2001. The doctor noted that the Complainant was tired, depressed, anxious, very, very tense. She decided to prescribe Paxil, an antidepressant, because she felt that the Complainant was not improving despite being off the job. On cross-examination, she added that the Complainant told her afterwards that she never took the antidepressant. [74] On December 14, 2001, Dr. Mander saw the Complainant. The Complainant seemed to be doing better and she verbalized her intention to go back to work. Dr. Mander gave the Complainant a Doctor's Note indicating that she was ready to return to work full time. [75] During her cross-examination, Dr. Mander admitted that she personally didn't have any idea of what was going on in the Complainant's workplace and that for this information she relied solely on the Complainant. She further added that her role was to observe the patient and not to get involved in what she described as the legal hassles between the workplace and the patient. She also indicated that the Complainant was suffering from reactive depression to her workplace which does not mean that the Complainant was suffering from clinical depression. V. LEGISLATION For the purpose of this case the relevant sections of the Act are: 3. (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted. 7. It is a discriminatory practice, directly or indirectly, (a) to refuse to employ or continue to employ any individual, or (b) in the course of employment, to differentiate adversely in relation to an employee, on a prohibited ground of discrimination. 15. (1) It is not a discriminatory practice if (a) any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a bona fide occupational requirement. (2) For any practice mentioned in paragraph (1)(a) to be considered to be based on a bona fide occupational requirement and for any practice mentioned in paragraph (1)(g) to be considered to have a bona fide justification, it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost. 25. In this Act disability means any previous or existing mental or physical disability and includes disfigurement and previous or existing dependence on alcohol or a drug. VI. THE ISSUES The issues in this proceeding are the following: Has the Complainant established a prima facie case of discrimination? If a prima facie case is established, did the Respondent fail to accommodate the Complainant? VII. LEGAL ANALYSIS [76] In the Supreme Court's decisions in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 [also referred to as Meiorin] and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 [also referred to as Grismer], the Court indicated that the initial onus is on the complainant to establish a prima facie case of discrimination. A prima facie case is one which covers the allegations made and which, if believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent.[ See Ontario Human Rights Commission and O'Malley v. Simpson Sears Limited, [1985] 2 S.C.R. 536, at p. 558.] [77] In Canadian Human Right Commission v. Attorney General of Canada, (Morris) 2005 FCA 154, the Federal Court of Appeal stated that the legal definition of a prima facie case does not require the Complainant to adduce any particular type of evidence to prove that she was a victim of a discriminatory practice. A flexible test is more appropriate. [78] Section 3 of the Act declares that disability is a prohibited ground of discrimination. Disability is defined at section 25 as a previous or existing ... mental disability. [79] A key issue in this case is whether or not the Complainant has a disability. In Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal City and Boisbriand (City), [2000] 1 S.C.R. 665 [also referred to as Mercier], the Supreme Court of Canada made some important comments about the ways in which courts need to think about and view disabilities. The Court sets out a broad legal test for how one establishes whether or not there is a disability within the meaning of human rights legislation. [80] Although the Mercier decision arose out of the Quebec Charter of Human Rights and Freedoms and not the Act, the comments of the Court are just as applicable to the latter since both provide similar protections. The Court focused its attention on the meaning and scope of the term handicap, which is the term used in the Quebec Charter to refer to a disability. More specifically the Court had this to say: 75 The following definition of the term handicap appears in the International Classification of Impairments: In the context of health experience, a handicap is a disadvantage for a given individual, resulting from an impairment or a disability, that limits or prevents the fulfilment of a role that is normal (depending on age, sex, and social and cultural factors) for that individual. 76 I completely agree with Philippon J. that the ground handicap must not be confined within a narrow definition that leaves no room for flexibility. Instead of creating an exhaustive definition of this concept, it seems more appropriate to propose a series of guidelines that will facilitate interpretation and, at the same time, allow courts to develop the notion of handicap consistently with various biomedical, social or technological factors. Given both the rapid advances in biomedical technology, and more specifically in genetics, as well as the fact that what is a handicap today may or may not be one tomorrow, an overly narrow definition would not necessarily serve the purpose of the Charter in this regard. 77 Generally, these guidelines should be consistent with the socio-political model proposed by J. E. Bickenbach in Physical Disability and Social Policy (1993). This is not to say that the biomedical basis of handicap should be ignored, but rather to point out that, for the purposes of the Charter, we must go beyond this single criterion. Instead, a multi-dimensional approach that includes a socio-political dimension is particularly appropriate. By placing the emphasis on human dignity, respect, and the right to equality rather than a simple biomedical condition, this approach recognizes that the attitudes of society and its members often contribute to the idea or perception of a handicap. In fact, a person may have no limitations in everyday activities other than those created by prejudice and stereotypes. 78 In Legal Rights for Persons with Disabilities in Canada: Can the Impasse Be Resolved? (1997-98), 29 Ottawa L. Rev. 153, I. B. McKenna described the scope of the word handicap as follows, at p. 164: It is the combined effect of an individual's impairment or disability and the environment constructed by society that determines whether such an individual experiences a handicap. Similarly, Professor Proulx, supra, at p. 416, states: [TRANSLATION] . . . what matters with respect to discrimination based on handicap is not so much whether the victim of the exclusion has a real handicap or is actually a handicapped person within the meaning of other legislation enacted for other purposes or even within the ordinary meaning of these terms.. Central to the analysis is not so much the concept of the handicap itself, but the discrimination based on the handicap. See also Lepofsky and Bickenbach, supra, at p. 343. 79. Thus, a handicap may be the result of a physical limitation, an ailment, a social construct, a perceived limitation or a combination of all of these factors. Indeed, it is the combined effect of all these circumstances that determines whether the individual has a handicap for the purposes of the Charter. [81] Therefore in order to determine whether a person suffers from a disability the Tribunal will have to consider not only the medical condition of the Complainant, but also the circumstances in which a distinction is made. The Court adds: In examining the context in which the impugned act occurred, the court must determine, inter alia, whether an actual or perceived ailment causes the individual to experience the loss or limitation of opportunities to take part in the life of the community in an equal level with others.. (Para. 80.) [82] A disability may exist even without proof of physical limitations or the presence of an ailment. Although the Supreme Court is reminding us that an overreliance on medical information is not necessary in order to establish that a disability does or does not exist, there needs to be more that just a bare statement that one suffers from a disability to meet the test. There has to be evidence that the disability is there. This evidence can be drawn from the medical information and from the context in which the impugned act occurred. [83] In a recent decision, Desormeaux v. Ottawa-Carleton Regional Transit Commission, the Canadian Human Rights Tribunal had decided that there was a prima facie case of discrimination on the ground of disability by relying heavily on the evidence of the Complainant and her family doctor. On review, the Federal Court found that the Tribunal's finding on disability was unreasonable, mainly on the ground that the medical evidence in support of the finding was that of an expert in family medicine and that it was unreasonable to find that this doctor's evidence should carry more weight than the opinion of a specialized physician. The Federal Court judge concluded that there was no prima facie case to answer as she was not satisfied that there was properly admissible evidence to support a finding of disability. [84] The Federal Court of Appeal [2005 FCA 311] decided that the reviewing judge's decision was incorrect. It concluded that the Tribunal's decision on the issue of whether or not there was a disability was clearly one that deserved considerable deference. As the Supreme Court established in Granovsky v. Canada, [2000] 1 S.C.R. 703, at para. 34, and in Mercier, supra, at para. 71, disability in a legal sense consists of a physical or mental impairment, which results in a functional limitation or is associated with a perception of impairment. In light of this test, the Court of Appeal concluded that there was evidence before the Tribunal upon which it could reasonably find that there was a disability. [85] In the present case, as in the Desormeaux case, the Respondent argued that the medical evidence was not conclusive. Although it might be possible to qualify the medical evidence as not completely convincing, combined with the Complainant's and the Respondent's evidence, it is consistent with a finding that there is a disability. [86] The Respondent also relied, in its oral arguments, on a decision I rendered in Beauregard v. Canada Post Corp, [2004] C.H.R.D. N° 1 (upheld, 2005 CF 1384). It is important to note that the factual situation in the Beauregard case was somewhat different than in the present case. In Beauregard, the medical evidence on which the complainant relied had been contradicted by the respondent's own psychiatric and expert evidence. Furthermore, in that case there were no `at work' incidents clearly indicating that the complainant was experiencing medical issues. [87] Regarding panic attacks, the British Columbia Council of Human Rights, in Sansome v. Dodd (c.o.b Portside Paul's Fish & Chips), [1991] B.C.C.H.R.D. No. 17, determined that they constituted a disability for the purposes of the B.C. Human Rights Code. (See also Cameron v. Fletcher Challenge Canada Limited (1995), 24 C.H.R.R. D./506 (B.C.C.H.R.)) [88] The Act does not contain a list of acceptable and unacceptable mental disabilities. It is not just the most serious or most severe mental disabilities that are entitled to the protection of the Act. Additionally, it is not solely those that constitute a permanent impairment that must be considered. Where appropriate, even mental disabilities described as minor with no permanent manifestation could be entitled to protection under the Act. However, sufficient evidence still needs to be presented to support the existence of the disability. [89] For the purposes of the prima facie test, I find that there is clear evidence that the Complainant was suffering from a disability, namely, panic attacks. I also find that her manager at the time, Ms. McIntyre, should have been able to conclude from her conversations with the Complainant and her observations that health-wise things were not going normally. [90] During the meeting of June 21, 2001, the Complainant told Ms. McIntyre that she was experiencing a reoccurrence of a health issue. Ms. McIntyre also knew that the Complainant had consulted her doctor. She was further informed on June 27, 2001, that during a meeting with her co-workers, the Complainant had raised issues regarding her health. She was also told that the Complainant was very upset during this meeting. [91] On June 28, 2001, the Complainant explained her situation to her supervisor Rick Levert. He testified that during this meeting the Complainant was very emotional. He added that at one point she burst into tears. The Complainant also informed her supervisor that she was seeing her doctor. On that same day, Ms. McIntyre was informed by the Complainant's co-workers that she had gone home sick. Ms. McIntyre also knew that Mary was dealing with a previous health condition. [92] Rick Levert was informed on June 29, 2001 that the Complainant's doctor had put her off work indefinitely. Actually, the Complainant was absent from work from June 30, 2001 to July 23, 2001, and the medical support documentation tendered to the employer indicated work stress. Just after her return to work, on July 25, 2005, the Complainant met with her supervisor and informed him that her health was not good and that this was a permanent condition. [93] In a letter written to Debby McIntyre and Rick Levert on July 26, 2001, the Complainant mentioned that her health problem due to the stress/workload was returning. In her reply to this letter, on August 9, 2001, Debby McIntyre stated I share your concerns regarding your health. [94] On August 20, 2001, in a meeting with Debby McIntyre, the Complainant indicated that she still felt that her health was an issue. She mentioned that she was suffering from increased anxiety attacks which were triggered by her job. During another meeting on August 23, 2001, Debby McIntyre noted that the Complainant was teary. Ms. McIntyre inquired about the Complainant's health and she told her that she was not doing very well and that she had to make some decisions about her job. Ms. McIntyre encouraged her to see her doctor and to take time off if needed. [95] Then there were the events of August 30, 2001, which made it clear that the complainant was dealing with a medical situation. [96] Ms. McIntyre testified that she did not have the impression that the anxiety attacks referred to by the Complainant were an illness. Rather, she stated that her understanding was that the Complainant's stress and anxiety came from the fact that she was struggling with doing the duties of a CR-04. I understand this as being an acknowledgement on her part that she knew the Complainant was experiencing stress and anxiety but that she had made up her mind that these were performance issues. [97] All of the events described above should have sent up a red flag. I conclude that, from all of these events, the Respondent knew, or ought to have known that the Complainant was experiencing anxiety from work-related stress. The fact that she did not tell them in so many words does not disentitle her from the protection of the Act (see: Mager c. Louisiana-Pacific Canada Ltd., [1998] B.C.H.R.T.D. No. 36.) For its part, if the respondent felt that work induced stress is not a disability it should have sought a professional assessment of the Complainant. [98] It is not enough for the Respondent to say that they were not advised of or aware of the Complainant's condition. Certainly, from the evidence presented at the hearing, it is clear that they must have been aware that she was suffering from what might be described as a delicate emotional state. Knowing what it did, it was up to the employer to determine whether the complainant's health was affecting her performance. It had the responsibility to at least inquire as to whether the complainant's condition might impact upon its decision to terminate the Complainant. [99] Even if the Complainant did not present the employer with a medical diagnosis of her disability, this does not disentitle her to the protection of the Act. An individual with a disability and, in particular, somebody with a mental disability may not know the exact nature and extent of that disability at the time they are experiencing the symptoms. In such circumstances, we cannot impose a duty to disclose a conclusive medical diagnosis. [100] I do not minimize the importance for an employee to submit to the employer medical notes informing the employer of his or her medical situation. Employers rely on these notes to inform themselves of the employee's health condition insofar as this is relevant to the need for accommodation. I suspect, though, that most employees would be reluctant to inform the employer that they may have a mental disability. They may fear that an employer may use this information to their detriment and that it is in their best interest to work with their problems as best they can. [101] The obvious change in the Complainant's behaviour during the summer months of 2001 should have made the employer realize that there was something wrong. The Complainant had alerted her manager and supervisor during this period that the fact her work was not getting done was not because she was not interested in doing it, but because she had a health issue. Her employer, for its part, had decided, based on information that it was getting from her co-workers, that this was a performance issue and not a question of disability. [102] Ms. McIntyre was convinced that the Complainant was not able to do the CR-04 job. She truly believed that the Complainant felt that the job wasn't doable and that she had shut her mind to ways in which she could make it doable. Ms. McIntyre felt that the manager had a responsibility to ensure stability in the unit to support the officers. She added that the Complainant had a history. By this she meant that she had determined that the Complainant had a pattern of absence where she would work for a period of time and then go off on leave. This conclusion is interesting in view of the fact that it did not come up during the time that Marg Garey was the Complainant's manager and no mention of this history was made to Ms. McIntyre when she took over the position of manager. The evidence does not support this conclusion. [103] The Respondent should have explored why the work was piling up; why the employee's performance was going down. Based on the evidence before it, the Respondent could not simply jump to the conclusion that this performance problem was stemming from a poor attitude. [104] In this particular case, it is clear that the ultimate decision not to renew the Complainant's contract was influenced by her disability. In this regard, one has only to look at Ms. McIntyre's notes on August 30, 2001, which reflect a conversation that she had with a representative of staffing relations at the Respondent's regional headquarters, and in which she mentions that to renew Mary's contract of 30 Sept/01 in my opinion is not wise for Mary's continued good health. (Emphasis added) This, by itself, is sufficient to establish a prima facie case of discrimination. The Complainant's health or disability was manifestly present in the Respondent's mind when it decided not to continue to employ her. [105] Once a prima facie case of discrimination has been established, the onus shifts to the Respondent to prove, on a balance of probabilities, that the seemingly discriminatory standard or policy that it applied is a bona fide occupational requirement. In order to establish this, according to Meiorin and Grismer the Respondent must prove that: it adopted the standard for a purpose or goal that is rationally connected to the function being performed; it adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose, with no intention of discriminating against the claimant; the impugned standard is reasonably necessary for the employer to accomplish its purpose. The employer must establish that it cannot accommodate the claimant and others adversely affected by the standard without experiencing undue hardship. [106] In the present case the standard or policy applied by the Respondent would be the decision to abolish the CR-03 position which the Complainant held and not to renew her term contract. [107] The Meiorin and Grismer decisions address parameters for determining whether a defence based on undue hardship has been established. In Meiorin, the Court observed that the use of the word undue implies that some hardship is acceptable. It is only undue hardship that satisfies this test. An uncompromisingly stringent standard may be ideal from an employer's perspective. Yet, if it is to be justified under human rights legislation, the standard must accommodate factors relating to the unique capabilities and inherent worth and dignity of every individual, up to the point of undue hardship. [108] The Supreme Court observed that in order to meet this onus, the Respondent bears the burden of demonstrating that the standard incorporates every possible accommodation to the point of undue hardship. [See Grismer, supra, para. 32.] It is incumbent on the Respondent to show that it has considered and reasonably rejected all viable forms of accommodation. The onus is on the Respondent to prove that incorporating aspects of individual accommodation within the standard was impossible short of undue hardship. [See Grismer, supra, para. 4.] [109] In Gardiner v. British Columbia (Attorney General), [2003] B.C.H.R.T.D. No. 40, the British Columbia Human Rights Tribunal had this to say regarding the duty to accommodate (paras. 168 and 169): It is important to make the distinction between the fact of a disability and the functional impact of the disability at any given period. An individual may have a continuing illness or injury which is found to be a disability under the Code, yet suffer no functional impact for long periods of time as a result of the disability: Morris v. B.C. Rail 2003 BCHRT 14. In such circumstances, if the fact of the disability is not brought to the attention of the Respondent, and accommodation is not requested, the Respondent may very well not be aware of the disability and indeed could not reasonably be assumed to have this knowledge. Where the Respondent is not aware of a disability, and no accommodation is requested, the duty to accommodate is not triggered. In the circumstances of this case, I am satisfied that the Respondent was not aware, nor could it reasonably be presumed to have been aware, of the Complainant's disability for the period from February 13, 1995 to April 1998. The Respondent was not on notice that accommodation was required and the evidence before me does not support that the Respondent had reason to suspect that the Complainant required accommodation during this period. (My emphasis.) [110] The factual situation in this case is, in many ways, different from the Gardiner case. Here, taking into consideration the context, I have concluded that the Respondent was aware or should have been aware of the Complainant's disability. Although there was no formal notice requesting accommodation before October 22, 2001, the various discussions that the Complainant had with her supervisor and manager, as their written notes clearly indicate, show that this is what was being sought. [111] In this case the Respondent led no evidence with respect to its efforts to try to accommodate the Complainant. The fact that it reviewed the Complainant's job description and made one or two phone calls to market the Complainant cannot be seen as an effort to accommodate her up to the point of undue hardship. Following the Complainant's formal request for accommodation on October 22, 2001, what the Respondent could have done is explore with her whether she was willing to have them discuss the issue with her doctor. This would have allowed them to ascertain what accommodation measures she needed and make an informed decision as to whether these measures were reasonable or imposed an undue hardship. They chose not to adopt this course of action because they had made up their minds that this was a performance issue. It is important to remember that performance and disability are not unrelated, especially inasmuch as disability can affect an employee's performance. Not all performance problems are rooted in disability, but those that are usually require some measure of accommodation. [112] Ms. McIntyre acknowledged that she was aware that the Complainant had, in the past, asked for a lower level deployment because of health reasons. When asked if she had that kind of flexibility in the situation at issue here, she answered that this would not have been a wise decision from a managerial point of view. She added that to take such a course of action would have gone against the business decision that had been made. Ms. McIntyre added that she considered that the Complainant was a term employee and we don't change our total organizational structure and business decision when we could market a term employee to another office. After having discussed the Complainant's situation with a staffing consultant at the Respondent's regional office, the decision was made not to renew the Complainant's term contract on September 30, subject to a 30 day extension for job searching. In her evidence Ms. McIntyre indicated that it was not wise for the Complainant's continued good health and the operational requirements of the Foreign Workers Unit that the contract be renewed. VIII. CONCLUSION [113] Considering the factual situation of this case and the governing legal principles, I find that the Complainant was discriminated against on the basis of a disability contrary to section 7 of the Act. Hearing dates will be set in order to address the issue of damages and other relief sought. Signed by Michel Doucet OTTAWA, Ontario January 25, 2006 PARTIES OF RECORD TRIBUNAL FILE: T928/4804 STYLE OF CAUSE: Mary Mellon v. Human Resources Development Canada DATE AND PLACE OF HEARING: February 16-18, 2005 February 21-25, 2005 June 13-16, 2005 June 23-24, 2005 Oakville, Ontario DECISION OF THE TRIBUNAL DATED: January 25, 2006 APPEARANCES: Alison Dewar For the Complainant No one appearing For the Canadian Human Rights Commission Chris Leafloor Andrea Horton For the Respondent

2006 CHRT 30

CHRT

Warman v. Harrison

en

2006-08-15

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6733/index.do

2023-12-01

Warman v. Harrison Collection Canadian Human Rights Tribunal Date 2006-08-15 Neutral citation 2006 CHRT 30 File number(s) T1072/5305 Decision-maker(s) Doucet, Michel Decision type Decision Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE RICHARD WARMAN Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CRAIG HARRISON Respondent DECISION 2006 CHRT 30 2006/08/15 MEMBER: Michel Doucet I. INTRODUCTION II. FAILURE OF CRAIG HARRISON TO BE PRESENT AND ATTEND THE WHOLE HEARING. III. THE ISSUES IV. THE SECTION 13 COMPLAINT A. General Approach B. Did Mr. Harrison communicate or cause to be communicated repeatedly the messages found on the Websites in issue? C. Were these messages communicated in whole or in part by means of a telecommunication undertaking within the legislative authority of Parliament? D. Is the subject matter of the messages likely to expose a person or persons to hatred or contempt by reason of the fact that they are identifiable on the basis of a prohibited ground of discrimination? (i) What is the subject matter of the messages communicated by Mr. Harrison? (ii) Are these messages likely to expose a person or persons to hatred or contempt by reason of the fact that they are identifiable on the basis of a prohibited ground of discrimination? E. Finding regarding the section 13 complaint V. REMEDY A. Cease and Desist Order 24 B. Penalty VI. ORDER I. INTRODUCTION [1] On November 23, 2003, Richard Warman filed a complaint with the Canadian Human Rights Commission against Craig Harrison. Mr. Warman's complaint alleges that Mr. Harrison is discriminating against persons or groups of persons on the basis of religion, race, colour, and national or ethnic origin by repeatedly communicating messages through an Internet Website that would likely expose Italians, Mexicans, Puerto Ricans, Haitians, francophones, blacks, First Nations persons, East Asians, non-whites and Jews to hatred and contempt contrary to section 13(1) of the Canadian Human Rights Act. [2] The Canadian Human Rights Commission, the (Commission) fully participated at the hearing into the complaint and was represented by legal counsel. II. FAILURE OF CRAIG HARRISON TO BE PRESENT AND ATTEND THE WHOLE HEARING [3] Mr. Harrison attended the opening of the hearing on June 12, 2006. He had requested that he be represented by his common law wife, Ms. Susen Holmes. Less than ninety minutes into the hearing and during Mr. Warman's testimony, Mr. Harrison started yelling at the witness forcing the Tribunal to order an adjournment. Mr. Harrison then stormed out of the hearing room while still yelling obscenities at Mr. Warman. [4] At the resumption of the hearing, neither Mr. Harrison nor Ms. Holmes were present. I then adjourned the hearing until June 13, 2006 and ordered that a letter be served on Mr. Harrison informing him that the hearing would resume on that date and, should he not be present, the Tribunal would proceed in his absence. [5] An Affidavit of Paul Mitchell, a process server from the City of Brampton, was filed as evidence. In his affidavit, Mr. Mitchell informed the Tribunal that he attended at the Respondent's residence in Georgetown, Ontario, at 4:10 p.m. on June 12, 2006 to serve the Tribunal's letter on Mr. Harrison. There being no answer, he attended again at the same address at 7:30 p.m. and again there was no answer. He further added that he heard voices inside the house and that he continued to knock but no one answered the door. He then left a copy of the Tribunal's letter in an envelope addressed to Craig Harrison stuck in the door. Five minutes latter, he phoned the residence and a woman who identified herself as Susen Holmes answered and told him that she had found the letter and would make sure that Craig Harrison received it. [6] On June 13, 2006, the Tribunal was informed by Ms. Holmes via telephone that Mr. Harrison would not participate in the hearing. [7] The Tribunal is satisfied that Mr. Harrison and his representative Ms. Holmes had notice that the hearing would resume at 9:30 a.m. on June 13, 2006 and that they chose not to participate. III. THE ISSUES [8] Insofar as Mr. Warman's section 13 complaint is concerned, there are three issues that must be considered in determining whether the complaint has been made out: Did Mr. Harrison communicate, or cause to be communicated, repeatedly, the messages found on the various Websites in issue? Were these messages communicated in whole or in part by means of a telecommunication undertaking within the legislative authority of Parliament? Is the subject matter of the messages likely to expose a person or persons to hatred or contempt by reason of the fact that they are identifiable on the basis of a prohibited ground of discrimination? [9] In the event that the complaint is substantiated, the issue of the appropriate remedy will also have to be addressed. IV. THE SECTION 13 COMPLAINT A. General Approach [10] Section 13(1) of the Canadian Human Rights Act, R.S. 1985, chap. H-6, (the Act) reads as follows: 13. (1) It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination. 13. (1) Constitue un acte discriminatoire le fait, pour une personne ou un groupe de personnes agissant d'un commun accord, d'utiliser ou de faire utiliser un téléphone de façon répétée en recourant ou en faisant recourir aux services d'une entreprise de télécommunication relevant de la compétence du Parlement pour aborder ou faire aborder des questions susceptibles d'exposer à la haine ou au mépris des personnes appartenant à un groupe identifiable sur la base des critères énoncés à l'article 3. [11] Section 13(2) extends this provision to communications made on the Internet: (2) For greater certainty, subsection (1) applies in respect of a matter that is communicated by means of a computer or a group of interconnected or related computers, including the Internet, or any similar means of communication, but does not apply in respect of a matter that is communicated in whole or in part by means of the facilities of a broadcasting undertaking. (2) Il demeure entendu que le paragraphe (1) s'applique à l'utilisation d'un ordinateur, d'un ensemble d'ordinateurs connectés ou reliés les uns aux autres, notamment d'Internet, ou de tout autre moyen de communication semblable mais qu'il ne s'applique pas dans les cas où les services d'une entreprise de radiodiffusion sont utilisés. [12] The Act is especially designed to prevent the spread of prejudice and to foster tolerance and equality. The purpose of the Act is found in section 2 which states: 2. The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted. 2. La présente loi a pour objet de compléter la législation canadienne en donnant effet, dans le champ de compétence du Parlement du Canada, au principe suivant : le droit de tous les individus, dans la mesure compatible avec leurs devoirs et obligations au sein de la société, à l'égalité des chances d'épanouissement et à la prise de mesures visant à la satisfaction de leurs besoins, indépendamment des considérations fondées sur la race, l'origine nationale ou ethnique, la couleur, la religion, l'âge, le sexe, l'orientation sexuelle, l'état matrimonial, la situation de famille, la déficience ou l'état de personne graciée. [13] It is this purpose - the promotion of equal opportunity unhindered by discriminatory practices based on the enumerated grounds - which informs the objective of section 13(1). In denoting the activity described in this section as a discriminatory practice, Parliament has indicated that it views repeated telephonic communications likely to expose individuals or groups to hatred or contempt by reason of their being identifiable on the basis of certain characteristics as contrary to the furtherance of equality (See Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892). [14] It is also important to keep in mind that intent to discriminate is not a pre-condition to a finding of discrimination (Ontario Human Rights Commission and O'Malley v. Simpson-Sears Ltd, [1985] 2 S.C.R. 536, at pages 549-50; Canada (Human Rights Commission) v. Taylor, supra, at pages 931-34). [15] In Warman v. Kulbashian et al, 2006 CHRT 11 (C.H.R.T.), at paragraph 59, the Tribunal indicates: [The] language of section 13 is clear, in that it is the effect of messages that has attracted the attention of Parliament. The question to be asked is not whether the conveyor of the message intended to communicate hate or contempt, but whether the message itself is likely to expose persons belonging to the identifiable groups to hatred or contempt. If indeed the newsletter's content was intended to express a supposed political opinion, the message could have been communicated without resort to the extremist and denigrating language that pervades the various editions of the newsletter... [16] In Nealy v. Johnston (1989), 10 C.H.R.R. D/6450, at para. 45697, the Tribunal stated that the use of the word likely in s. 13(1) means that it is not necessary that evidence be adduced to prove that any particular individual or group took the messages seriously and directed hatred or contempt towards others. Nor is it necessary to show that anyone was so victimized. Unlike the other sections in the Act dealing with discrimination, s. 13(1) provides for liability where there is no proven or provable discriminatory impact. As commented by the Tribunal in Warman v. Winnicki, 2006 CHRT 20, at paras. 46 and 49: [46] ... The Tribunal alluded to the difficulty involved in determining how many people had received the message and to gauging the impact of the message on these people. This, in the Tribunal's view, justified the extension of liability under s. 13(1) to cases where there is no proven or provable actual discriminatory effect. [49] ...Section 13(1) makes it a discriminatory practice to communicate messages that are likely to expose a person or persons to hatred or contempt. The provision does not state that it is a discriminatory practice to communicate messages that cause others to feel hatred or contempt toward members of the targeted group. [17] Hate messages can cause harm in two significant ways. First they undermine the dignity and self-worth of the targeted group members and secondly they erode the tolerance and open-mindedness that must flourish in a multi-cultural society that is committed to the idea of equality (Winnicki, supra, at para. 50.) Therefore proof of harm is not required. [18] As the Federal Court stated in Canadian Human Rights Commission v. Winnicki, 2005 FC 1493, at para. 30: The damage caused by hate messages to the groups targeted is very often difficult to repair. It insidiously reinforces the prejudice that some people may have towards minorities identified by race, color, ethnic origin and religion, thus prompting and justifying discriminatory practices and even violence against these groups. At the same time, these messages are most likely to affect the perception and self-esteem of all members of these groups, thus preclu ding their full participation in Canadian society and the achievement of their full potential as human beings. [19] How is the likelihood of exposure to harm to be determined? In Citron v. Zündel, (No. 4) (2002), 41 C.H.R.R. D/274, the Tribunal stated that the most persuasive evidence was the language used in the messages themselves. There is no need for expert evidence on this matter although it could be helpful in certain cases. [20] As stated earlier, three elements must be proven on a balance of probabilities to establish a violation of section 13 : Did the Respondent communicate or cause to be communicated repeatedly the material which is subject of the complaint? Were these messages communicated in whole or in part by means of a telecommunication undertaking within the legislative authority of Parliament? Is the subject matter of the messages likely to expose a person or persons to hatred or contempt by reason of the fact that they are identifiable on the basis of a prohibited ground of discrimination? B. Did Mr. Harrison communicate or cause to be communicated repeatedly the messages found on the Websites in issue? [21] Mr. Warman's interest in the area of hate groups and hate propaganda began approximately 15 years ago when he started monitoring the activities of various individuals that were prominent within white supremacist and Neo-Nazi groups. Five or six years ago, with the advent of the Internet, he became interested in its use by these groups and by individuals promoting similar ideas to disseminate hate propaganda. [22] His complaint relates to messages posted on different Websites. One of these Websites is called Freedomsite. This Website is described by Mr. Warman as a collection of a number of different white supremacist or Neo-Nazi groups. According to the complainant, the opening page of the message board of this Website includes a list of Conferences which includes headings entitled Immigration, Religion, Enemies of Freedom, and Jokes and Trivia. Under these headings individual threads were posted. Threads can be described as subcategories to the broader headings in the Conferences. [23] He states that he visited the Freedomsite Website and its message board on various occasions and that during these visits he found that seventy-one (71) messages had been posted between May 13, 2002 and January 21, 2003, by an individual using the login names realcanadianson and rump. To be more precise the messages under the login name realcanadianson were posted during five days between May 13 and May 21, 2002; those using the login name rump appeared on November 13, 2002, as well as on January 19 and January 21, 2003. Finally, as we will see later, other messages using the login name realnorthamerican were posted between January 27 and January 24, 2004 and again on February 2 and 5, 2004 on another Website. [24] In the course of his research, Mr. Warman sought to learn the identity of this person. He noticed that all the postings using the login names realcanadianson also included the email address susen@sympatico.ca. According to Bell Sympatico's account information, this email address is that of Susen Holmes whose residence is the same as that of Craig Harrison, the Respondent, in Georgetown, Ontario. [25] Furthermore, on the issue of identity, a print-off of a page from the Freedomsite posted in May 2002, by realcanadianson susen@sympatico.ca had the following message: i did two years in jail for kicking a half breed chink, spear chucker in 96. In another posting on May 14, 2002, again from realcanadianson susen@sympatico.ca, we can read: you're my hero. i got 2 years in jail in 96 because i beat down a half breed child molestor (sic) in Georgetown ont. hey im (sic) a hero too. Again on the same day another posting from realcanadianson susen@sympatico.ca: i went to jail for 2 years because i punched out a fucken nigger in georgetown. i am a real canadian hero like my grandfathers in the wars wre (sic). hey guess what?the french didnt fight in the wars because they were cowards and should be driven into the sea. On May 16, 2002, the same person using the same login name and email address posted the following message: skin head remember me?im (sic) the guy from georgetown who got 2 years for thumpin that nigger on main street.come back soon .we need you here for the cause.god bless and take care. [26] The evidence shows that in 1996, Mr. Harrison was convicted for assault causing bodily harm and was sentenced to two years less a day in jail. This assault occurred in Georgetown, Ontario. [27] A newspaper article, dated May 29, 1996, from the Georgetown Independent entitled Store owner viciously attacked, describes an assault on a business owner of Chinesse-African background, in front of his store on Main Street, in Georgetown. It adds that the individual who had been charged with the assault was one Craig Harrison. The article specifies that the victim was in front of his business when he was approached by a young white man who shouted racial slurs, pushed him to the ground and started punching and kicking him. [28] During his brief appearance before the Tribunal, Mr. Harrison did not deny that he was responsible for the events described in the article. On the contrary, while Mr. Warman was giving evidence regarding this incident, Mr. Harrison took offence to the characterization of this attack as being racially motivated. He started yelling: It wasn't racist...Nothing racist about it. Got it? Good. Let's go[talking to Susen Holmes] have a smoke. This guy's a jerk. Mr. Harrison also used other abusive words which were not recorded. This attitude and the aggressive reaction of Mr. Harrison confirms in my mind that he is the same person as the one referred to in the newspaper article. [29] Court documents referring to this incident were also put into evidence. These documents were issued by the Central West Region Criminal Court and they refer to charges against Mr. Harrison for the assault in Georgetown. Mr. Harrison's address on these documents is exactly the same as the one the Tribunal has on file and where the process server delivered the Tribunal's letter on June 12, 2006. [30] Mr. Warman further testified that after seeing the email address susen@sympatico.ca on the various postings using the pseudonym realcanadianson, it was fairly easy for him to do a search on that email address. What resulted from this search was a posting, dated December 4, 2002, in a guestbook of another Website hosted by Canadian Heritage Alliance, in which Craig Harrison had identified himself by name. He had then given his email address as susen@sympatico.ca, and indicated that he lived in Georgetown, Ontario, Dominion of Canada(sic). [31] Mr. Warman's searches also turned up a certain number of postings under the login name rump. These posting are very similar in style to the one posted by realcanadianson. They were all in lower case lettering, had the same sort of run-through punctuation and basically covered the same topics in terms of the targets of the attack. One posting in particular dated November 13, 2002, was signed c s h a real canadian. According to Mr. Warman, the importance of this signature for identity purposes is that Mr. Harrison's full name, as indicated in the court documents, is Craig Steven Harrison (initials C.S.H.). [32] Furthermore, in some of the posting using the login name rump, the author identifies his home town as being Georgetown. [33] An affidavit by Hannya Rizk, an investigator with the Canadian Human Rights Commission, dated June 8, 2006, was put into evidence by the Commission. The Respondent, who at that time was still present at the hearing, did not oppose the filing of this affidavit, nor did he ask to cross-examine its author. [34] In the Investigator's Report annexed to her affidavit, Ms. Rizk indicated that on February 25, 2004, Mr. Harrison called the Commission and provided his defence to the complaint over the phone. He was asked by Ms. Rizk if he had ever visited the Freedomsite Website. He responded that he had, on that day, but that he could not access it because it had been shut down. He was then asked if he had visited the site prior to February 25, 2004 and he answered that he might have. She also asked if he had ever posted messages on the Website, he answered that he might have. [35] Ms. Rizk asked Mr. Harrison if he had ever used the pseudonyms realcanadianson and rump. He answered `no' adding that he did not have an email address but that he did use on occasion the email address of his girlfriend Susen Holmes, which he identified as being susen@sympatico.ca. [36] During the hearing, the Commission also filed as evidence an affidavit from Marc Lemire, the webmaster of the Freedomsite.org Website, which up until January 2004 included the message board where the messages with the login names realcanadianson and rump were posted. Mr. Lemire explained in his affidavit that to register a user account on the message board, a person had to give his first and last name, his login name and an email address. He added that there was no verification done on the first and last name or the login name. The only verification was to ensure that a valid email address was provided. When an individual signed up a new account, a password was emailed to the address he or she provided. [37] In his affidavit, Mr. Lemire annexed the user profile for the login names realcanadianson and rump. For the login name realcanadianson, the user's name was given as Craig Harrison, the location was Georgetown, Ontario and the email address was susen@sympatico.ca. For rump the user's name was registered as Lomp Pomp and the location was given as Yukom, Ontario polop2. It is obvious that these are fictional. The email address though is still susen@sympatico.ca, the same as the one used by realcanadianson. [38] Mr. Warman further alleges that Mr. Harrison is responsible for postings on another Website located at www.ypenterprise.net, which is host to a forum called Yoderanium under the login name realnorthamerican. There are a lot of similarities in the style used and in the themes advocated by realnorthamerican and those of realcanadianson and rump. The characterization of French Canadian as cowards and draft dodger is a recurrent theme in all of these postings. Also a very distinctive trait is the attacks on people of Dutch origin on the immigration that followed the Second World War and the references to former Prime Minister Trudeau. Although the evidence concerning the login name realnorthamerican is circumstantial, it is sufficient to establish a prima facie case that realcanadianson is another login name used by Mr. Harrison. [39] The ultimate burden rests on the complainant and the Commission to establish their case on a balance of probabilities. Once a prima facie case has been made out, it is incumbent upon the Respondent to provide a reasonable explanation demonstrating that he was not the author of the offending messages, that the alleged discrimination never occurred or that his conduct was somehow non-discriminatory. [40] In his reply to the complaint, Mr. Harrison and his representative, Susen Holmes suggested that he had been wrongly accused and that in fact, they did not at the relevant time own a computer or that another individual had used their computer and posted the messages. They indicated that they looked forward to presenting their versions of the facts. But they opted otherwise and decided that they would not participate in the hearing or lead evidence to support their explanations. The Tribunal cannot take stock of mere hints or innuendos tossed in the reply to the complaint, if there is ultimately no evidence introduced to sustain these assertions. [41] Mr. Harrison's decision not to give evidence or to submit himself to cross-examination allows the Tribunal to draw an inference that his evidence may indeed have been detrimental to him. In Nealy v. Johnston, supra, the Tribunal noted at paragraph 45628 : As Sopinka and Lederman, supra state: [F]ailure on the part of a defendant to testify...once a prima facie case has been made out against the defendant, may be the subject of an adverse inference. (p. 537) The learned authors also note that an unfavourable inference can also be drawn when a party litigant does not testify or fails to call a witness, who would have knowledge of the facts, and who might have given important supporting evidence if the case of the litigant had been sound. (p. 145). [42] In the present case, Mr. Harrison did not testify, nor did he call anyone else as a witness. As I indicated earlier, a prima facie case has been made out by the complainant that Mr. Harrison posted these messages and, under the circumstances of this case, it is appropriate for the Tribunal to draw an adverse inference from the Respondent's decision not to offer a reply. [43] Based on the evidence before me, I find that Craig Harrison is the author of the messages posted on the Freedomsite and of those posted in the Yoderanium forum under the login names realcanadianson, rump and realamericanson. [44] In regards to the element of repetition, the Tribunal held in Schnell supra, at para. 129, that the use of the word repeatedly in s. 13(1) suggests that this section is aimed not at private communications with friends, but rather at a series of messages that form a larger-scale, public scheme for the dissemination of certain ideas or opinions, designed to gain converts from the public (See Warman v. Winnicki, 2006 CHRT 20, at para. 36). I am of the view that Internet messages exchanged on a Website accessible to anyone are not intended to be private communications. I note that in the present case, Mr. Warman had no difficulty surfing his way to the Websites where these messages were posted. Since these messages could be viewed at any time by anyone using the Internet, they were indeed being communicated repeatedly. [45] The fact that a Website is a somewhat passive medium, requiring the reader to take positive steps in order to access the posted material does not detract from the fact that in up-loading the messages to the Websites, Mr. Harrison communicated the material in issue (See Schnell v. Machiavelli and Associates Emprize Inc, 43 C.H.R.R. d/453, at para,127; and, Warman v. Kyburz, 2003 CHRT 18, at para. 9). [46] Furthermore, by using the Internet, the slow, insidious effect of a relatively isolated bigoted commentary as described in Canada (Human Rights Commission) v. Canadian Liberty Net, [1998] 1 S.C.R. 626, at para 48, where the telephone was being used, has now changed to a form of communication having a widespread circulation. The messages on the Internet are much more easily accessible and pervasive than any previous telecommunication medium. The content of a Website can also easily be mirrored and replicated ad infinitum with virtually no control by the originator (Barrick Gold Corp. v. Lopehandia, [2004] O.J. No. 2329). [47] Therefore, I conclude that the Complainant and the Commission have established a prima facie case that Craig Harrison did communicate or cause to be communicated repeatedly the messages found on the Websites in issue. C. Were these messages communicated in whole or in part by means of a telecommunication undertaking within the legislative authority of Parliament? [48] The substantive evidence against Mr. Harrison consists primarily of copies of email postings on the Internet. [49] The Canadian Human Rights Act, as it was originally enacted, did not explicitly deal with Internet communications. As part of the changes to Canadian law effected by the proclamation of the Anti-Terrorism Act, S.C. 2001, c. 41, section 88, on December 24, 2001, the Canadian Human Rights Act was amended to add subsection 13(2) supra, which deals expressly with matters communicated by means of the Internet. [50] Since all the messages which form the basis of this complaint, were posted after the enactment of section 13(2), there is no issue that they were communicated in whole or in part by means of a telecommunication undertaking within the legislative authority of Parliament. Even if this had not been the case, we must remember that the earlier version of section 13 had been found to encompass Internet communications in both Citron et al v. Zündel, supra, and in Schnell v. Machiavelli and Associates Emprize Inc. et al, supra. D. Is the subject matter of the messages likely to expose a person or persons to hatred or contempt by reason of the fact that they are identifiable on the basis of a prohibited ground of discrimination? (i) What is the subject matter of the messages communicated by Mr. Harrison? [51] In his complaint, Mr. Warman alleges that Mr. Harrison posted messages, which would likely expose Italians, Mexicans, Puerto Ricans, Haitians, francophones, blacks, First Nations persons, East Asians, non-whites and Jews to hatred and contempt, by reason of their religion, national or ethnic origin, race or colour. [52] While the language used is quite offensive and debasing, to say the least, I feel that it is relevant to the issues to be resolved to quote from some of these messages. The following are excerpts of the messages posted by Mr. Harrison under the various login names: Under the login name realcanadianson : May 14, 2002 12:06 A.M. why does aqua velva come in different colours? because indians like shooters too. 12:08 A.M. what does an indian woman say when she is losing her virinity (sic)? Get off me dad your squishing my smokes. 12:47 A.M. no we should not be on the hook for them .it was a good idea at the time [Referring to residential schools] and most indians were for it .i wish my ancestors had killed them all so they wouldn't be whinning (sic) today. 3:43 P.M. liberals killed canada.did you know trudeau was a filthy french draft dodger?didn't want to fight for canada and his family should be killed. 4:36 P.M. kill anyone who is not white because god says so. 4:44 P.M. i call on all my white brothers to rise up and kill non whites because god gave canada to the white man. 4:51 P.M. jews make good lamp shades. 4:58 P.M. we have to kill the french forigners (sic) from quebec 10:51 P.M. we all need to rise up and kill non whites because that's gods (sic) solution amen. 10:55 P.M i love you wolfgan (sic)1.your the best.i was thinking of you when i was in the hole at maplehusrts oops i mean niggerhurst. i did two years for beating a half breed child molestor (sic). i guess were (sic) both heroes. May 15, 2002 9:37 A.M. fuck buying it back. i say go out and kill anything non white and insure yourself a place beside god. 9:38 A.M. i told you the only good french man is a dead french man. May 21, 2002 12:37 P.M. the indian heathens should all be killed says i. a message from gods (sic) chosen one. 12:42 P.M. if you are not white than you are not allowed in halton hills. If you come here god has told me to kill you. 12:52 P.M. the government should focus on giving land to veterans and there (sic) families before dealing with the indian devils. 12:53 P.M. you should be killed for saying that you pigg (sic) indian lover. Under the login namesrump: January 19, 2003 9:56 A.M. first off canada needs a canadian prime minister not some french man who wre (sic) draft dodgers in the wars.3rd world immigrant shit keeps them in power.if you are worried about health care then you have your priorities backwards.its (sic) not what your country can do for you.but what can you do for your country !refugees dont (sic) land at airports.real ones are in camps you liberal fall down creeps.GO BACK TO FRANCE YOU GARBAGE WASTE OF FLESH AND SPACE. 9:42 P.M. god says rise up and kill all whites who date blacks. 9:45 P.M. georgetown has just declared itself all white and the others must go.its my town so fuck off d.p.2 scum and the french and dutch sell outs. 10:03 P.M. GOD says tot (sic) take your guns to jane and finch (nigger town) and open fire on the heathens .you will have 20 virgins waiting for you in the after life. January 21, 2003 10:03 A.M. if i ever see any niggers or chinks dealing in my town[i represent g-town] i will kill them and anybody who dares testify. 10:16 A.M. it s (sic) okay to not like someone because they look different.no matter what the french scum in Ottawa say.GO BACK TO FRANCE NOBODY CONSIDERS YOU CANADIANS ANYWAY. Under the login name realnorthamerican: January 28, 2004 dont (sic) be fooled by what that french scum bag [referring to General Roméo Dallaire] has to say!he doesn't deserve to be called canadian anyway!the french in canada were notorius (sic) for refusing to serve and fight for canada in the wars!they were whinning (sic) cowards PERIOD NO REBUTTEL (sic) NEEDED!no french man is worthy to run canada!look at what trudeau did to canada!now no one knows what a canadian looks like! i saw a film clip on the holohoax were(sic) a kid and his mother were separated in the camps!imagine how more worse the world would be if hitler hadnt (sic) fried all those jews!i wish i could have been in charge of the gas chambers! canada has been the victim of illegal aliens since the liberal government enacted political correctness on an un suspecting (sic) population!trudeau who was p.m. for 15 years was a french draft dodger and pro nazi and commie!his buddy was fidel castro for fukin sake!the immigrants in canada vote in blocks and not independently (sic)!they vote for a party and not the person in other words!they hold free speechers (sic) like zundel in solitary confiment (sic) and let nigger and paki terrorists post 1000 dollar bonds and walk away!these scum bags flush there (sic) travel papers down the air plane toilet!remember people real refugees cant afford plane tickets they are selected from camps!. January 29, 2004 we could use the french as slaves I guess!and no english come first in canada because we have done most good for canada!NOBODY LIKES THE FRENCH OR THE DUTCH!MY OLD MAN CALLED THE DUTCH THE JEWS OF THE NORTH!HOW TRUE! January 30, 2004 i guess your ancestors havent (sic) been in canada long or you dont (sic) know canadian history very well!when the french came to north America they brought no women with them!so guess what!THE SQUAWS must have looked pretty good because canada has 7 million french people who in fact are really half indian and not really french at all!dont believe me then you know nothing of canadian history!french women are easier and more dirtier in bed because there (sic) indian ancestors had loose morals!lokk (sic) it up what you have heard above is a little canadian history the french seem to want to hide. Canadians support the pallistinians (sic) and not the invading jews! i hope they blow up lots of crowded buses. i know a greek guy who went to york university in north york above Toronto there and he used to call it JEW U!i guess they had a lot of jews there so if any arab terrorist reads this then you know where to start picking them off!have a nice day! February 2, 2004 there is nothing canadian about the people who came to canada after the war and there (sic) offspring born here!that is a myth about Italians building toronto!toronto and a lot of its building were here before those grease balls showed up!the wops were nazi remember! February 5, 2004 like my name says buddy i am a real canadian-my grand fathers fought for this country in the wars and those people are more canadian than any other period!indians or metis have no culture period-no written language, no religion, no wheel, no common currency.doesnt (sic) seem to be culture to me but lack of a culture instead!so why (sic) you guys are whinning (sic) about your jew masters i actually get things done. [53] It is not the role of the Tribunal to regulate the free exchange of ideas. There may be elements of a legitimate political debate, although I fail to see them, in some of these postings and nobody would quarrel with the fact that the Respondent has a right to his political views. But it is also clear that the majority of these postings go beyond the legal parameters of public debate and contravene the provisions of the Act. The call for violence toward Aboriginals, francophones, blacks and other non-whites, as well as attacks on others groups and individuals based on their religion, colour, national or ethnic origin using racial slurs and degrading stereotypes does not constitute legitimate political debate. It promotes hatred and contempt. [54] The themes of these postings deal essentially with the killing of non-whites and other targeted communities such as the French Canadians, blacks and people of the Jewish faith. They exhort whites to do the killing because, according to the author god has instructed them to do so or because god gave Canada to the white man. They attack in a demeaning and humiliating way members of various cultural and religious communities. We can feel in these posting an obsessive hatred of the aboriginal, francophone and, for that matter, of all communities who are not white, Christian or from English ancestry. (ii) Are these messages likely to expose a person or persons to hatred or contempt by reason of the fact that they are identifiable on the basis of a prohibited ground of discrimination? [55] In order to address this question, the meaning of the words expose, hatred and contempt must be considered. The Canadian Human Rights Tribunal, as well as the Federal Court and the Supreme Court of Canada, have had occasions to consider the meaning of these terms in previous decisions. [56] The terms hatred and contempt have been judicially considered in previous section 13 cases. In Canada (Human Rights Commission) v. Taylor, supra, the Supreme Court of Canada cited with approval the definitions of theses terms in Nealy v. Johnston (1989), 10 C.H.R.R. D/6450 at 6469 (C.H.R.T.). In Nealy, the Tribunal said: As there is no definition of hatred or contempt within the [Canadian Human Rights Act] it is necessary to rely on what might be described as common understandings of the meaning of these terms. Clearly these are terms which have a potentially emotive content and how they are related to particular factual contexts by different individuals will vary. There is nevertheless an important core of meaning in both, which the dictionary definitions capture. With hatred the focus is a set of emotions and feelings which involve extreme ill will towards another person or group of persons. To say that one hates another means in effect that one finds no redeeming qualities in the latter. It is a term, however, which does not necessarily involve the mental process of looking down on another or others. It is quite possible to hate someone who one feels is superior to one in intelligence, wealth or power. None of the synonyms used in the dictionary definition for hatred give any clues to the motivation for the ill will. Contempt is by contrast a term which suggests a mental process of looking down upon or treating as inferior the object of one's feelings. [57] The Tribunal in Nealy also considered the meaning of the word expose as it is used in section 13: Expose is an unusual word to find in legislation to control hate propaganda. More frequently, as in the Broadcasting Act Regulations, Post Office Act provisions and in the various related sections of the Criminal Code, the reference is to matter which is abusive or offensive, or to statements which serve to incite or promote hatred. Incite means to stir up; promote means to support actively. Expose is a more passive word, which seems to indicate that an active effort or intent on the part of the communicator or a violent reaction on the part of the recipient are not envisaged. To expose to hatred also indicates a more subtle and indirect type of communication than vulgar abuse or overtly offensive language. Expose means: to leave a person unprotected; to leave without shelter or defence; to lay open (to danger, ridicule, censure etc.). In other words, if one is creating the right conditions for hatred to flourish, leaving the identifiable group open or vulnerable to ill-feelings or hostility, if one is putting them at risk of being hated, in a situation where hatred or contempt are inevitable, one falls within the compass of section 13(1) of the Canadian Human Rights Act. (See also the Tribunal's decision in Schnell, supra, at paras. 85-89) [58] In my view, there can be no doubt that the messages contained in the postings are likely to expose persons who are non-Christian, non-Caucasian and non-English in origin, to hatred or contempt. These persons are laid open to ridicule, ill feelings, hostility and violence creating the right conditions for hatred or contempt against them to flourish. [59] The supposed humour found in postings under the heading Jokes unquestionably exposes these groups to hatred and contempt. These jokes blatantly treat people of the Jewish faith and aboriginals with disdain and as being inferior. They are demeaning and disdainful. In general, the messages serve to dehumanize people belonging to the targeted groups. The use of racial slurs and degrading stereotypes are derogatory, insulting, offensive and of themselves they display hatred and contempt in regard to these groups. The call for violence against members of these groups denotes feelings of extreme ill will. [60] The author's extreme ill will and malevolence towards these groups pervades these postings. Statements exhorting violence and death, suggest that the victims lack any redeeming qualities, thereby dehumanizing them. These comments unquestionably expose the members of these groups to hatred, contempt and real physical danger by suggesting that they are legitimate targets of indiscriminate violence. These messages serve to develop and encourage envy, mistrust or resentment towards these individuals and groups, which in turn breeds hatred against them. [61] For all these reasons, I conclude that the messages are likely to expose a person or persons to hatred or contempt by reason of the fact that they are identifiable on the basis of a prohibited ground of discrimination. E. Finding regarding the section 13 complaint [62] Article 19 of the Universal Declaration of Human Rights provides that an individual has the freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media.... This right to hold and express one's opinions is a cornerstone of a free and democratic society and a right that Canadians value dearly. It also forms part of the Canadian Charter of Rights and Freedoms. [63] In the Taylor case supra, the Supreme Court of Canada had occasion to scrutinize the reach of section 13 of the Canadian Human Rights Act in light of the fundamental guarantee of freedom of opinion and expression protected by international law and the Canadian Charter of Rights and Freedoms. The Court concluded that while section 13 infringed the right of freedom of opinion and expression, this infringement was justified in light of Canada's international commitments to eradicate hate propaganda and its commitment to the values of equality and multiculturalism. [64] As this Tribunal has already stated, the values underpinning hate propaganda are fundamentally inimical, even antithetical to the rationale underlying the protection of freedom of expression and directly contradict other values equally vindicated by the Canadian Charter of Rights and Freedoms (Canadian Human Rights Commission v. Winnicki, 2005 FC 1493, at para. 29). [65] I think it is fair to say that the materials that were posted on the Websites referred to earlier and of which I have reproduced extracts in this decision, are likely to expose people of the Jewish faith, Aboriginal, francophones, blacks and others to hatred and contempt. They are undoubtedly as vile as one can imagine and not only discriminatory but threatening to the victims they target. [66] Having found that Craig Harrison did communicate, repeatedly, by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, matters that are likely to expose people or members of these groups to hatred or contempt by reason of the fact that they are identifiable on the basis of a prohibited ground of discrimination, I conclude that Mr. Warman's section 13 complaint is substantiated. V. REMEDY [67] Having substantiated Mr. Warman's section 13 complaint, the final issue to be determined is that of remedy. A. Cease and Desist Order [68] Where a section 13 complaint is substantiated, section 54(1)a) of the Act empowers the Tribunal to order the Respondent to cease the discriminatory practice, and to take measures in consultation with the Commission to redress the practice or to prevent the same or a similar practice from occurring in the future. The process of hearing a complaint and, if the complaint is substantiated, issuing a cease and desist order serves to remind Canadians of our fundamental commitment to equality of opportunity and the eradication of racial and religious intolerance. [69] A cease and desist order brings to a respondent's attention the fact that his or her messages are likely to have a harmful effect. Uncertainty or mistake as to the probable effect of these messages is thus dissipated and consequently their continued promulgation will be accompanied by the knowledge that certain individuals or groups are likely to be exposed to hatred or contempt on the basis of race or religion. [70] Messages posted by individuals on various Websites of the Internet present a particular challenge for the Tribunal in crafting a meaningful remedy. As the Tribunal said in Warman v. Kyburz, supra, at par. 81 : The unique nature of Internet technology, including the jurisdictional challenges arising from the borderless world of cyberspace, as well as the `moving targets' created by the use of mirror sites raise real concerns as to the efficacy of cease and desist orders in relation to hate messages disseminated on the Internet. [71] Despite these challenges, I adopt the words of the Tribunal in the Zündel decision supra, at para 300: Any remedy awarded by this Tribunal, will inevitably serve a number of purposes: prevention and elimination of discriminatory practices is only one of the outcome flowing from an Order issued as a consequence of these proceedings. There is also a significant symbolic value in the public denunciation of the actions that are the subject of this complaint. Similarly, there is the potential educative and ultimately the larger preventive benefit that can be achieved by open discussion of the principles enunciated in this or any Tribunal decision. [72] Therefore, a cease and desist order can have both a practical and symbolic effect. On a practical side, it will prevent the Respondent from continuing to communicate material of the nature described in this decision. On the symbolic side there is an important value to the public denunciation of the actions which form the subject matter of this complaint. [73] Accordingly the Tribunal orders that Craig Harrison or any other individuals who act in concert with Craig Harrison, cease the discriminatory practice of communicating telephonically or causing to be communicated telephonically by means of facilities of a telecommunication undertaking within the legislative authority of Parliament, material of the type that was found to violate section 13(1) in the present case, or any other messages of a substantially similar content that are likely to expose a person or persons to hatred or contempt by reason of the fact that a person, or persons, are identifiable on the basis of a prohibited ground of discrimination, contrary to section 13 of the Canadian Human Rights Act. For the sake of clarity, the Tribunal orders that Craig Harrison cease and desist from posting any such messages on the Internet immediately upon being notified of the Tribunal's decision. B. Penalty [74] Subsection 54(1)c) of the Act allows the Tribunal to order a respondent in a section 13 complaint to pay a penalty of up to $10,000. As was indicated by this Tribunal in Warman v. Kyburz, supra, at para. 92, [t]he inclusion of this provision in the 1998 amendments to the Act represents a significant departure from the traditional approach that damage awards in human rights cases were primarily remedial and not punitive. [75] In deciding whether to order Mr. Harrison to pay a penalty in this case, Parliament has directed that the Tribunal take several factors into account. Subsection 54(1.1) provides: (1.1) In deciding whether to order the person to pay the penalty, the member or panel shall take into account the following factors: (a) the nature, circumstances, extent and gravity of the discriminatory practice; and (b) the wilfulness or intent of the person who engaged in the discriminatory practice, any prior discriminatory practices that the person has engaged in and the person's ability to pay the penalty. (1.1) Il tient compte, avant d'imposer la sanction pécuniaire visée à l'alinéa (1)c) : a) de la nature et de la gravité de l'acte discriminatoire ainsi que des circonstances l'entourant; b) de la nature délibérée de l'acte, des antécédents discriminatoires de son auteur et de sa capacité de payer. [76] Each of these factors will be considered in turn. Insofar as the nature, circumstances, extent and gravity, the Tribunal finds that Mr. Harrison repeatedly communicated messages regarding persons who are non-Christian, non-Caucasian and non-English in origin that were nasty, vicious and extreme. These persons were laid open to ridicule, ill feelings, hostility and violence creating the right conditions for hatred or contempt against them. The messages are demeaning and disdainful. They serve to dehumanize people belonging to the targeted groups. The use of racial slurs and degrading stereotypes are derogatory, insulting and offensive. The repeated call for violence against members of these groups denotes feelings of extreme ill will. Statements exhorting violence and death, suggest that the victims lack any redeeming qualities, thereby dehumanizing them. These comments unquestionably expose the members of these groups to hatred, contempt and real physical danger by suggesting that they are legitimate targets of indiscriminate violence. These messages serve to develop and encourage envy, mistrust or resentment towards these individuals and groups, which in turn, breeds hatred against them. [77] I find that the messages clearly demonstrate that its author is being led by his ill-conceived views of society and his incapacity to accept others. The evidence clearly establishes that the Respondent intended to expose members of the targeted groups to hatred and contempt and that he intended to convince people to think as he did. He clearly communicated his messages in wilful disregard of the likely consequences of his conduct. I also take notice of the fact that the Respondent has previously been found guilty of an assault on an individual which was racially motivated. [78] On the mitigating side, I also find that the messages put in evidence were posted in a relatively short period of time and that there seems to have been no new posting since 2004. Also, I note that the Respondent is not responsible for the Websites; he is but a participant to these various Websites. No evidence was introduced to show that there is a possibility of any recurrence of such postings by the Respondent. [79] Subsection 54(1.1) mandates that the Tribunal consider the respondent's ability to pay a penalty before levying a fine. As was indicated by the Tribunal in the Warman v. Kyburz case supra, the burden of proof relating to the ability to pay rests with the respondent. Considering the decision of the Respondent not to participate in the hearing and submit evidence, there is no evidence before the Tribunal to suggest that Mr. Harrison may have limited resources. [80] Taking all of these factors into account, I order the Respondent to pay a penalty in the amount of $1,000. The order that the Respondent pay this penalty is imposed essentially by reason of the violent nature of the postings. Society cannot take lightly calls for the murder of persons because of their race, religion or ethnic origin. [81] Payment of the penalty shall be made by certified cheque or money order, payable to the Receiver General for Canada, and must be received by the Tribunal within 35 days of Mr. Harrison being notified of this decision. VI. ORDER [82] For the foregoing reasons, the Tribunal declares that Mr. Warman's rights under the Canadian Human Rights Act have been contravened by Craig Harrison, and orders in relation to the section 13 violation that: Craig Harrison, and any other individuals who act in concert with Mr. Harrison cease the discriminatory practice of communicating telephonically or causing to be communicated telephonically by means of the facilities of a telecommunication undertaking with the legislative authority of Parliament, material of the type that was found to violate section 13(1) in the present case, or any other messages of a substantially similar content, that are likely to expose a person or persons to hatred and contempt by reason of the fact that a person or persons are identifiable on the basis of a prohibited ground of discrimination, contrary to section 13(1) of the Canadian Human Rights Act. Mr. Harrison shall pay a penalty in the amount of $ 1,000. Payment of the penalty shall be made by certified cheque or money order, payable to the Receiver General for Canada, and must be received by the Canadian Human Rights Tribunal within 35 days of Mr. Harrison being notified of this decision. signed by Michel Doucet OTTAWA, Ontario August 15, 2006 1 Wolfgan refers to Wolfgang Droege the then National Director of the Heritage Front, one of the groups that forms part of the Freedom site. 2 d.p. stands for displaced persons a term used to identify post World War II refugees. PARTIES OF RECORD TRIBUNAL FILE: T1072/5305 STYLE OF CAUSE: Richard Warman v. Craig Harrison DATE AND PLACE OF HEARING: June 12 to 14, 2006 Toronto, Ontario DECISION OF THE TRIBUNAL DATED: August 15, 2006 APPEARANCES: Richard Warman For himself Giacomo Vigna For the Canadian Human Rights Commission Craig Harrison Susen Holmes For the Respondent

2006 CHRT 31

CHRT

Warman v. Canadian Heritage Alliance

en

2006-08-15

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6734/index.do

2023-12-01

Warman v. Canadian Heritage Alliance Collection Canadian Human Rights Tribunal Date 2006-08-15 Neutral citation 2006 CHRT 31 File number(s) T1089/7005, T1090/7105 Decision-maker(s) Jensen, Karen A. Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE RICHARD WARMAN Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADIAN HERITAGE ALLIANCE and - MELISSA GUILLE Respondents RULING 2006 CHRT 31 2006/08/15 MEMBER: Karen A. Jensen I. THE MEMBERSHIP LIST(S) FOR CANADIAN HERITAGE ALLIANCE II. THE ROLE OF MR. ALEXAN KULBASHIAN IN THE PRESENT COMPLAINT III. THE RESPONDENT'S ALLEGED NON-COMPLIANCE WITH THE TRIBUNAL'S DIRECTIONS REGARDING DISCLOSURE IV. THE COMPLAINANT'S ALLEGED NON-COMPLIANCE WITH THE TRIBUNAL'S DIRECTION REGARDING DISCLOSURE [1] This is a ruling on a number of issues that have arisen in a complaint brought by Richard Warman against Melissa Guille and Canadian Heritage Alliance. The complaint involves the alleged communication of hate messages contrary to s. 13(1) of the Canadian Human Rights Act. [2] The issues relate primarily to the disclosure of arguably relevant documents. I will deal with each in turn. I. The Membership List(s) for Canadian Heritage Alliance [3] In a letter dated July 12, 2006, the Tribunal directed the Respondents to provide the membership list or lists for Canadian Heritage Alliance during the relevant time period as this material was arguably relevant to the issues raised in the complaint. Ms. Guille requested an opportunity to argue that the Tribunal's direction be varied. The Tribunal granted Ms. Guille's request. [4] In her submissions, Ms. Guille argues that the only significance of a membership list, if such a list exists, is that it might establish whether or not the group has members and possibly the number of members. In this statement, Ms. Guille has correctly identified the arguable relevance of the membership list to the issues in the present matter. As indicated in the Tribunal's ruling of March 13, 2006, the question of whether Canadian Heritage Alliance is a group of persons acting in concert within the meaning of s. 13(1) of the Act is one that will be determined on the basis of a full evidentiary record (Warman v. Melissa Guille and Canadian Heritage Alliance 2006 CHRT 12). The membership list or lists, if they exist, are relevant to this issue. [5] Ms. Guille has stated that information regarding membership in Canadian Heritage Alliance may be elicited by other means or in the cross-examination of Ms. Guille if she chooses to testify. However, rule 6(1) of the Tribunal's Rules of Procedure stipulates that all arguably relevant documents for which no privilege is claimed, whether favourable to the parties' cases or not, must be disclosed. It does not matter whether the information might be obtained by other means. If the documents exist and are in the possession of the parties, they must be disclosed unless privilege is being claimed. Ms. Guille has not claimed that the document(s) in question are privileged. [6] It would appear that Ms. Guille's reluctance to disclose such list(s) is based on a concern that the Complainant might use the names on the list(s) for purposes unrelated to the present litigation. However, in cases such as this where disclosure of confidential documents is ordered, the implied undertaking rule applies. The rationale for this rule is that a party to litigation should have the full right of disclosure and inspection of relevant information, including that which is confidential, as is necessary to dispose fairly of the case. Nevertheless, parties are not permitted to use the disclosed material for any purpose collateral to the litigation (PSAC v. Canadian Museum of Civilization 2004 CHRT 38 at para. 12). As a lawyer, the Complainant is subject to professional obligations and rules of conduct that prohibit him from using the information from the list(s) for purposes that are unrelated to the present litigation. [7] Therefore, I order that Ms. Guille disclose the membership list or lists for Canadian Heritage Alliance in her possession for the relevant time periods. II. The Role of Mr. Alexan Kulbashian in the Present Complaint [8] During the June 22, 2006 case conference, Ms. Guille indicated that Mr. Alexan Kulbashian might be acting as her agent and may also be a witness for the Respondents. She requested that he be provided with copies of all correspondence regarding this matter. The Tribunal agreed to contact Mr. Kulbashian for all case management calls. The Tribunal will also provide Mr. Kulbashian with copies of all future correspondence on the file. [9] The Canadian Human Rights Commission put Ms. Guille on notice that if Mr. Kulbashian acts as her agent during the hearing, the Commission will object to Mr. Kulbashian testifying as a witness for the Respondents. The Commission subsequently requested an order from the Tribunal preventing Mr. Kulbashian from testifying at the hearing. That request is denied. It is unclear what role, if any, Mr. Kulbashian will play in the hearing. Therefore, any such order would be inappropriate at this time. III. The Respondents' alleged non-compliance with the Tribunal's directions Regarding disclosure [10] In a letter dated July 21, 2006, the Commission indicated that the Respondents have failed to comply with a number of the directions provided by the Tribunal regarding disclosure in the case conference on June 22, 2006. The Commission has indicated that the following documents have yet to be disclosed: The full resume of the Respondents' expert witness complete with background and qualifications as well as his speaking notes for the engagements specified in the report; Documents in the Respondents' possession relating to the hosting agreement for the website, whether it is an agreement, a contract, e-mails, etc. Documents in the Respondents' possession relating to the process used to ban individuals or to remove postings from the website. [11] In addition, the Commission indicated that the Respondents have not provided an updated list of their witnesses complete with a more detailed statement of the proposed testimony of each of the witnesses as directed by the Tribunal. Finally, the Respondents have failed to provide an amended Statement of Particulars outlining the nature of their defense specifically as it relates to the Expert Report. [12] Ms. Guille has indicated that she has not complied with the Tribunal's directions for further disclosure because she felt that as a result of her lack of legal experience and the Commission's failure to provide written notice of the disclosure demands, she was unable to understand what was being requested of her and to properly respond to those requests during the case conference of June 22, 2006. [13] Under the circumstances, I am prepared to give Ms. Guille two weeks from the date of this ruling to provide submissions as to why the Tribunal's directions regarding the disclosure of the above-noted documents should be varied. IV. The Complainant's alleged non-compliance with the Tribunal's direction Regarding disclosure [14] During a case conference on April 6, 2006, the Complainant was directed to provide any documents in his possession relating to accounts that he created on any website or forum related to the complaint. He was also directed to provide copies of any e-mails or communications that he had on these websites or forums. The Complainant responded to this direction by stating that he had no record of any postings he made on the Canadian Heritage Alliance forum or website. [15] The Respondents allege that Mr. Warman is not being truthful about the existence of such documents or that he has intentionally destroyed the documents in order to evade the disclosure requirements. The Respondents have requested an order from the Tribunal requiring the Complainant to answer an interrogatory in affidavit form in order to elicit full disclosure. [16] The Tribunal's Rules of Procedure stipulate that parties are required to disclose all arguably relevant documents that are in their possession. Parties are not required to create documents for disclosure (Gaucher v. Canadian Armed Forces 2005 CHRT 42). Requiring the Complainant to produce an affidavit would be tantamount to requiring the Complainant to create a document for disclosure. Therefore, I deny the Respondents' motion compelling Mr. Warman to produce an affidavit. [17] However, the Respondents are free to pose the questions in their interrogatory to the Complainant during cross-examination. In the meantime, the parties are reminded of their ongoing obligation to disclose all arguably relevant documents whether favourable to their cases or not. signed by Karen A. Jensen OTTAWA, Ontario August 15, 2006 PARTIES OF RECORD TRIBUNAL FILES: T1089/7005 and T1090/7105 STYLE OF CAUSE: Richard Warman v. Canadian Heritage Alliance and Melissa Guille RULING OF THE TRIBUNAL DATED: August 15, 2006 APPEARANCES: Richard Warman For himself Ceilidh Snider For the Canadian Human Rights Commission Melissa Guille For herself and for the Respondent, Canadian Heritage Alliance

2006 CHRT 32

CHRT

Warman v. Lemire

en

2006-08-16

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6731/index.do

2023-12-01

Warman v. Lemire Collection Canadian Human Rights Tribunal Date 2006-08-16 Neutral citation 2006 CHRT 32 File number(s) T1073/5405 Decision-maker(s) Hadjis, Athanasios Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE RICHARD WARMAN Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - MARC LEMIRE Respondent - and - ATTORNEY GENERAL OF CANADA CANADIAN ASSOCIATION FOR FREE EXPRESSION CANADIAN FREE SPEECH LEAGUE CANADIAN JEWISH CONGRESS FRIENDS OF SIMON WIESENTHAL CENTER FOR HOLOCAUST STUDIES LEAGUE OF HUMAN RIGHTS OF B'NAI BRITH Interested Parties RULING 2006 CHRT 32 2006/08/16 MEMBER: Athanasios D. Hadjis I. The orders requested in the Notice of Motion for Further Particulars and Disclosure A. Items a), b), c), d) and e) B. Item f) C. Item g) D. Item h) E. Item i) II. The orders requested in the Notice of Motion for Production of Documents (Constitutional Issues) [1] The Respondent, Marc Lemire, has filed two notices of motion. In the first motion, he seeks further particulars and disclosure from the Complainant, Richard Warman, and the Canadian Human Rights Commission. In the second motion, he requests production of documents from the Complainant and the Commission with respect to the constitutional issues. Both motions therefore relate to the parties' compliance with Rule 6 of the Tribunal's Rules of Procedure. [2] According to Rule 6(1), each party must serve and file with the Tribunal a Statement of Particulars setting out: 6(1)(a) the material facts that the party seeks to prove in support of its case; [and] 6(1)(d) a list of all documents in the party's possession, for which no privilege is claimed, that relate to a fact, issue, or form of relief sought in the case, including those facts, issues and forms of relief identified by other parties under this rule. [3] A copy of any document identified under Rule 6(1)(d) must be provided to the other parties (Rule 6(4)). [4] Mr. Lemire is essentially alleging, a) that the material facts set out in Commission's and Mr. Warman's joint Statement of Particulars are insufficient or lacking in certain respects, and b) that they have not disclosed certain documents that should have been disclosed pursuant to Rule 6(1)(d). [5] In Public Service Alliance of Canada v. Northwest Territories (Minister of Personnel), [1999] C.H.R.D. No. 8 (C.H.R.T.)(QL), the Tribunal noted that the purpose of particulars is to define the issues, prevent surprises, enable the parties to prepare for trial, and facilitate the hearing. With respect specifically to the communication of material facts, the Tribunal stated that the basic rule is that the parties should disclose sufficient facts to permit the other parties to prepare themselves for the hearing. However, a party is only entitled to the material facts on which the other party is relying. It is not entitled to a summary of the evidence that the other party intends to call, nor its arguments and reasoning. [6] Regarding the disclosure of documents, Rule 6(1)(d) dictates that documents relating to facts, issues and relief sought in the case must be disclosed. The test for relevance for these purposes has been expressed as being whether the document in question is arguably relevant to the hearing (see Bushey v. Sharma, [2003] C.H.R.D. No. 7 (C.H.R.T.)(QL) at para. 4). The question of relevance was addressed by the Tribunal in Communication, Energy and Paperworkers Union of Canada v. Bell Canada, [2005] C.H.R.D. No. 34, (C.H.R.T.)(QL). Referring to the Supreme Court's findings in Smith & Nephew v. Glegg, [2005] 1 S.C.R. 724, the Tribunal noted that on issues of relevance, a party must show that disclosure of the document will be useful, is appropriate, is likely to contribute to advancing the debate and is based on an acceptable objective he or she seeks to attain in the case, and that the document is related to the dispute. [7] With these considerations in mind, I will now address the specific requests in Mr. Lemire's motions. I. The orders requested in the Notice of Motion for Further Particulars and Disclosure [8] At the end of this Notice of Motion, Mr. Lemire compiled an itemized list of orders that he is seeking from the Tribunal. I will address these requests item by item. A. Items a), b), c), d) and e) [9] Items a) through e) are similar in nature. The orders requested read as follows: That the complainant provide the name(s) of the Internet Service Provider(s) he used to access freedomsite.org, stormfront.org and jrsbookonline.com in 2003 and 2004 and the account name he used; That the complainant provide the location of the computer(s) which he used to access the freedomsite.org (ie. - home or from the offices of the Commission); That the complainant provide the email or emails he used to gain access to the freedomsite.org message board; That the complainant provide the password or passwords he used to gain access to the freedomsite.org message board; That the complainant provide the log-in name(s) (or pseudonym(s)) he used while on the freedomsite.org message board. [10] These appear to be requests for further particulars, as opposed to disclosure of any specific documents. In the material facts section of Mr. Warman's and the Commission's joint Statement of Particulars, dated December 7, 2005, it is stated that the alleged hate messages were viewed by Mr. Warman on the freedomsite.org, stormfront.org and jrsbooksonline.com websites in November 2003 and October 2004. [11] Mr. Lemire contends that in order to gain access to these websites and the chat lines found therein, one must register with the message board or enter as a guest using a computer with a unique Internet Protocol Address. To gain full access, a valid e-mail address must be provided. Mr. Lemire claims that he requires the particulars being sought under these items of his motion in order to check the log files of the message board and confirm that Mr. Warman is telling the truth. [12] In my view, the material facts provided by Mr. Warman and the Commission regarding the websites visited and the dates of these visits are sufficient to allow Mr. Lemire to prepare for the hearing. Mr. Lemire has effectively been placed on notice that Mr. Warman intends to prove that he visited these sites and viewed the alleged hate messages. It will be up to Mr. Warman and the Commission to prove these facts. Any issues regarding the accuracy or veracity of the evidence regarding these visits can be more appropriately explored by Mr. Lemire through cross-examination. [13] The orders requested in Items a), b), c), d), and e) are therefore denied. B. Item f) [14] The item requested reads as follows: f) That the complainant provide copies of all printouts he made from freedomsite.org during the times he visited it and its message board; [15] In support of this request, Mr. Lemire argued in his motion that Mr. Warman may have made printouts of other messages that he decided not to use in the complaint and that if he printed out other messages from the web board, why did he not include them in the complaint? [16] An obvious answer may be that Mr. Warman did not perceive the other material as being in violation of the Canadian Human Rights Act and therefore did not include it in the complaint. Nonetheless, I am prepared to accept that any document in the possession of a party relating to the messages referred to in the complaint may be arguably relevant to the facts at issue in this case. I therefore order Mr. Warman to disclose, in accordance with Rules 6(1)(d) and 6(4), copies that are in his possession of any printouts he made from freedomsite.org and its message board during the times he visited them, prior to filing his complaint. C. Item g) [17] The item requested reads as follows: g) That the complainant provide copies of all messages which he posted on the freedomsite.org message board and the stormfront.org message board or any replies to messages that he posted on these web boards; [18] Mr. Lemire claims in his motion that it is somehow relevant to this case whether Mr. Warman tried to refute the alleged hate messages or to advise the message board participants that some of the messages being posted were racist. With respect, I fail to see how this is relevant to the issues arising from the complaint. If the evidence establishes that Mr. Lemire communicated or caused to be communicated hate messages in the manner contemplated in s. 13 of the Act, his liability will be engaged, irrespective of Mr. Warman's actions or omissions. [19] Mr. Lemire goes on to say, however, that the manner and ease with which people of opposing views can participate on those message boards may be relevant to the issues that he has raised regarding the constitutional validity of s. 13 of the Act. I am satisfied that Mr. Warman's postings are arguably relevant in this respect. [20] Mr. Warman is therefore ordered to provide any copies in his possession of messages that he posted on the freedomsite.org and stormfront.org message boards, or any replies that he posted on these web boards. D. Item h) [21] The item requested reads as follows: h) That the complainant and the Canadian Human Rights Commission produce all documents relating to the identity of the person who posted the messages on the respondent's message board under the name Craig Harrison which is in their possession or which comes into their possession. [22] In his reply to the submissions of the other parties, dated June 29, 2006, Mr. Lemire acknowledged that he was in the process of receiving the documents requested under this item. I can only assume that this request is therefore withdrawn. E. Item i) [23] The item requested reads as follows: i) That the complainant and the Commission produce a compilation of those messages which they allege to constitute hate messages within the meaning of section 13 of the Canadian Human Rights Act with appropriate markups of those parts specifically relied upon as exposing persons to hatred or contempt. [24] Mr. Lemire points out in his motion that the Commission and Mr. Warman produced over 133 pages of messages as part of their disclosure, in which one finds hundreds of messages. None of the messages have any underlining or marking to indicate which portions are alleged to expose groups to hatred or contempt. [25] Mr. Warman contends that he has provided sufficient particulars. He indicates in his submissions that his original complaint sets out 29 examples of the type of material from the disclosed documents that he alleges violate s. 13(1) of the Act. He contends that this is sufficient to fulfill his disclosure obligations and provide Mr. Lemire the ability to know the case that must be met. [26] I disagree. To put forth over a hundred pages of messages and then reserve the right to pick out any one of these messages and argue at the hearing that it constitutes a violation of s. 13(1) of the Act, denies him a true and effective opportunity to know the case that he must meet. If the Commission and Mr. Warman take the position that each message found on each of the disclosed pages constitutes a hate message, then they should so indicate explicitly. Mr. Lemire can then consider himself forewarned and can prepare himself accordingly. [27] However, if the Commission and Mr. Warman believe in good faith that only a number of the messages in the disclosed pages are in violation of the Act, then they should be forthright in declaring and detailing their positions to the other party. [28] The Commission and Mr. Warman are therefore ordered to identify specifically those messages that they allege constitute hate messages within the meaning of s. 13 of the Act. II. The orders requested in the Notice of Motion for Production of Documents (Constitutional Issues) [29] On November 25, 2005, Mr. Lemire filed a Notice of Constitutional Question in the present case, in which he alleged that ss. 13 and 54(1)(1.1) of the Act are in violation of ss. 2(a) and (b), 7, 26 and 31 of the Canadian Charter of Rights and Freedoms, and that these violations are not saved by s. 1 thereof. A violation of ss. 1(d) and (f) of the Canadian Bill of Rights is also alleged. [30] In the present Notice of Motion, Mr. Lemire alleges that the Commission has failed to disclose documents that are relevant and useful to the constitutional question raised. In particular, he is requesting that the Commission disclose documents regarding the Commission's activities as they relate to s. 13 of the Act. [31] Mr. Lemire points out that as part of the analysis of the constitutional question, the Tribunal may have to consider whether the alleged violation of the constitutional rights and freedoms invoked are justified pursuant to s. 1 of the Charter. He referred to the tests set out by the Supreme Court of Canada in R. v. Oakes, [1986] 1 S.C.R. 103, and in particular, the proportionality test discussed at paragraphs 70 and 71 of the decision. The Court noted that as part of the analysis, one must balance the interests of society with those of individuals or groups. There must be a proportionality between the effects of the measures that limit the Charter right or freedom and the objective of the measures. The Court added that the inquiry into the effects is wide-ranging. It is possible that because of the severity of the deleterious effects of a measure on individuals or groups, the measure will not be justified by the purposes it intends to serve. [32] Mr. Lemire contends that the deleterious effects of s. 13 of the Act extend beyond the orders that the Tribunal may issue after adjudicating a complaint. He alleges that the Commission, in exercising its powers under the Act, has engaged in activities that have had the deleterious effect of restricting Charter rights and freedoms, outside the scope of the Tribunal hearing process. For instance, it is argued by Mr. Lemire that the Commission may have influenced Internet service providers (ISPs) in such a manner that the ISPs have removed websites that the Commission finds objectionable, without a human rights complaint ever having been filed against the website's operator. [33] In effect, the Commission would thereby achieve the result of having expressive material banned extrajudicially. This, it is argued, is a deleterious effect of s. 13, which must be explored as part of the proportionality test articulated in Oakes. [34] The Commission's position, in reply, is basically two-fold: first, that the request for documents is over-reaching and ambiguous - a matter that I will address separately below - and that the documents sought are not arguably relevant to the constitutional question. In my view, the Commission does not directly address the argument raised by Mr. Lemire. The Commission has not demonstrated how Mr. Lemire's submissions with respect to the relevance to the constitutional analysis are unfounded. [35] As I have already pointed out, according to Rule 6, documents that relate to an issue, whether raised by one party or another, must be disclosed. Mr. Lemire has raised the constitutionality of s. 13 as an issue in this case and as part of the analysis of this issue, the deleterious effects of s. 13 may need to be considered. This could include the manner in which these effects result in the violation of Charter rights and freedoms by means other than Tribunal orders following the adjudication of complaints. These effects relate to an issue identified by a party in this case and therefore, any document relating to these effects must be disclosed. [36] The Attorney General of Canada, in its submissions on this motion, raises a different argument than the Commission. The Attorney General contends that Mr. Lemire, in bringing up as an issue the manner in which the Commission discharges its mandate, is attempting to launch a Charter challenge against the Commission's interpretation and application of s. 13 of the Act, in fulfillment of its mandate under ss. 27 and 49(1). The only mechanism by which Mr. Lemire can accomplish this, it is argued, is by judicial review before the Federal Court or by an application/action for a declaration in a provincial superior court. [37] Mr. Lemire replies that it is not a review of the lawfulness of the Commission's activities that he is seeking from the Tribunal. Rather, he is seeking a review of whether the deleterious effects of the legislation on freedom of speech outweigh the salutary effects. [38] In my view, both parties raise interesting points that can be properly submitted before the Tribunal adjudicating on the merits of the constitutional challenge and the complaint as a whole. At this stage, however, the question before me is very basic: do the documents being sought relate to an issue that has been raised by one of the parties to the case? [39] I accept Mr. Lemire's submission that there exists a nexus between the issue of the constitutionality of ss. 13 and 54(1)(1.1) of the Act, and any documents relating to any Commission activities that may affect the rights and freedoms guaranteed under the Charter. The documents are therefore subject to disclosure, in accordance with Rule 6. [40] But this does not end the matter. The Commission contends that Mr. Lemire's requests for production are over-reaching and ambiguous. In my view, this assessment seems particularly applicable to the items requested under headings (h), (k) and (n), of Paragraph 37 of the Notice of Motion, which read as follows: h) All internal documents relating to hate and the Internet from 1993 (excluding documents filed in Tribunal proceedings under section 13 of the Act, transcripts of such proceedings or any internal solicitor correspondence related to such files); k) All documents relating to the genesis and procedures of the special anti-hate team set up to deal with complaints under section 13 including any guidelines for determining what is hate or contempt and staff training for determining what is hate within the meaning of s. 13; n) All documents concerning the Commission's activities in relation to hate on the Internet pursuant to section 27 of the Canadian Human Rights Act. [41] As the Tribunal noted in the Bell Canada ruling, supra, at paras. 12-14, requests for disclosure that are over-reaching and lacking in specificity, amounting basically to the proverbial fishing expedition, will be denied. [42] In my view, items (h), (k), and (n) fall within this category. The requests are excessively broad in nature and encompass aspects of Commission activities that are not likely to relate to the issues of this dispute. For instance, it is not at all clear how documents relating to internal activities of the Commission can have a deleterious effect on Charter rights and freedoms of persons outside the Commission. It is only once the reach of a Commission activity extends outside the organization and affects a Charter right or freedom, that a document relating thereto becomes arguably relevant to the issue identified by Mr. Lemire. [43] On the other hand, I accept that the requests in items (j), (l) and (m) are arguably relevant and are not over-reaching or ambiguous: j) All documents relating to the Commission's relations with Internet Service Providers, including attempts to pressure ISPs to shut down websites or remove them; l) All documents relating to meetings, networking and consultation with any group representing one of the groups protected from discrimination under the Canadian Human Rights Act, and any police or governmental agencies, relating to hate on the Internet; m) All documents relating to educative or publicity activities of the Commission with respect to hate. [44] Mr. Lemire had initially requested the production of two other sets of documents (Items (i) and (o)), but it would appear from his subsequent correspondence with the Tribunal that he has obtained these documents from alternate sources. I assume therefore that these requests have been withdrawn. [45] To summarize, therefore, with respect to the second Notice of Motion, the Commission is ordered to disclose all documents in its possession relating to Items (j), (l) and (m) as hereinabove recited, and as listed in Paragraph 37 of the Mr. Lemire's Notice of Motion for the Production of Documents (Constitutional Issues), dated May 17, 2006. [46] A schedule for the disclosure of these documents can be established at an upcoming case management conference call. signed by Athanasios D. Hadjis OTTAWA, Ontario August 16, 2006 PARTIES OF RECORD TRIBUNAL FILE: T1073/5405 STYLE OF CAUSE: Richard Warman v. Marc Lemire RULING DATED: August 16, 2006 APPEARANCES: Richard Warman On his own behalf Giacomo Vigna / Ikram Warsame On behalf of the Canadian Human Rights Commission Barbara Kulaszka On behalf of the Respondent Simon Fothergill On behalf of the Attorney General of Canada Paul Fromm On behalf of the Canadian Association for Free Expression Douglas H. Christie On behalf of the Canadian Free Speech League Marvin Kurz Joel Richler / Courtney Harris Steven Skurka On behalf of the League for Human Rights of B'nai Brith On behalf of the Canadian Jewish Congress On behalf of the Friends of Simon Wiesenthal Center for Holocaust Studies

2006 CHRT 33

CHRT

Hoyt v. Canadian National Railway

en

2006-08-18

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6732/index.do

2023-12-01

Hoyt v. Canadian National Railway Collection Canadian Human Rights Tribunal Date 2006-08-18 Neutral citation 2006 CHRT 33 File number(s) T1036/1705 Decision-maker(s) Lloyd, Julie C. Decision type Decision Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE CATHERINE HOYT Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADIAN NATIONAL RAILWAY Respondent - and - UNITED TRANSPORTATION UNION Interested Party REASONS FOR DECISION 2006 CHRT 33 2006/08/18 MEMBER: Julie C. Loyd I. INTRODUCTION II. BACKGROUND A. The Complainant B. The Respondent (i) The Walker Yard (ii) The Beltpack (iii) CN's Seniority System - The Spare Board (iv) CN's Accommodation Policy III. THE FACTS GIVING RISE TO THE COMPLAINT A. CN's First Offer of Accommodation B. CN's Second Offer of Accommodation C. CN's Third Offer - The Crew Van Position and Child Care IV. ANALYSIS A. Has the Complainant Demonstrated a Prima Facie Case of Discrimination on the Basis of Sex? (i) Refusal to Employ or to Continue to Employ (ii) Differentiating Adversely B. CN's Justification C. Was CN's Conduct Justified? Was it a BFOR? (i) Rational Connection (ii) Honest and Good Faith Belief (iii) Reasonable Necessity D. Did the Union Obstruct CN's Attempts to Accommodate Ms. Hoyt? E. Has the Complainant Demonstrated a Prima Facie Case of Discrimination on the Basis of Family Status? F. CN's Justification G. Was CN's Conduct Justified? Was the Conduct a BFOR? H. Finding of Discrimination V. WHAT REMEDIES ARE SOUGHT? A. By the Complainant (i) An Order that CN Review its Accommodation Policy (ii) Compensation for Lost Wages and Benefits (iii) Compensation for Pain and Suffering (iv) Special Compensation (v) Legal Costs (vi) Interest (vii) Retention of Jurisdiction by the Tribunal B. Relief Requested by the Interested Party (i) Legal Costs (ii) Declaration I. INTRODUCTION [1] The complainant, Catherine Hoyt, alleges that her employer, the Canadian National Railway Company (CN) failed to accommodate her pregnancy and also failed to accommodate her parental obligations. She contends that CN thereby discriminated against her on the basis of her sex and her family status, in breach of section 7 of the Canadian Human Rights Act (the Act or CHRA.). [2] The complainant's union, the United Transportation Union (the Union), sought and received Interested Party status in the proceedings. In its statement of particulars, CN alleges that the Union did not act cooperatively or reasonably with respect to Ms. Hoyt's accommodation. The case managing member ruled that, in light of these allegations, the reputational interests of the Union might be affected by the within proceedings and that, accordingly, it was appropriate to grant the Union the status it sought and to direct that the Union would be allowed to introduce evidence, examine and cross-examine witnesses and present argument on issues where its interests might be affected and on its involvement in the accommodation efforts. [3] The hearing extended 10 days in April of 2006 and included a site visit to the Walker Yard of the CN Edmonton Terminal. Both the complainant and the respondent participated at the hearing and were represented by legal counsel. The Union participated in the hearing and was represented by counsel. The Canadian Human Rights Commission did not participate. [4] For the reasons set out below, I have determined that CN did discriminate against Ms. Hoyt by failing to accommodate her pregnancy, and further that CN failed to accommodate her parental obligations. Ms. Hoyt's complaint has therefore been substantiated. II. BACKGROUND A. The Complainant [5] Ms. Hoyt is a third generation railroader. Both of her grandfathers, her father, two uncles and her brother enjoyed careers with CN. She is also married to a railroader. [6] In July of 1991, Ms. Hoyt was hired by CN. She worked first as a welder's helper in different regions of Ontario and in the spring of 1995 applied for and won a position at CN's Edmonton Terminal. Her family history had taught her that this would be a good career that would provide her and her family a good living, as it had other of her relatives. [7] A few months after Ms. Hoyt relocated she earned the position of a yard conductor in the Walker Yard of the Edmonton operation. Ms. Hoyt was a yard conductor at the time this complaint was filed. B. The Respondent [8] The respondent, CN, operates a railroad and is in the business of transporting goods across the country by rail. [9] The events relevant to the within complaint took place at CN's Edmonton Terminal. The Edmonton Terminal is comprised of the Walker Yard and three satellite yards, being the Bissell Yard, Cloverbar and the Scotford Yard. Approximately 100 employees work in the yards. Additionally, some of the administration of the Terminal was conducted at the time from the CN building in downtown Edmonton. Approximately 200 employees worked in the downtown administration building. [10] A brief description of the nature of this facility and some of CN's operations will be helpful to an understanding of the issues relevant to the within complaint. (i) The Walker Yard [11] At various points across the country the respondent has facilities that allow trains to be assembled and re-assembled as necessary. The Walker Yard is one such facility. The conductors in the Walker Yard marshal cars. Trains enter the Yard with cars on route to different locations. Perhaps 20 cars on a particular train must continue to the west coast, and another 30 to northern Alberta and so on. Trains must be disassembled and then reassembled so the cars can continue to their ultimate destination. [12] The procedure used to marshal cars is quite ingenious. The Walker Yard has a hump. The Hump is a hill with a very modest inclination. Trains are pushed up to the crest of this hill and the cars are disengaged either singly or in clusters as they are about to descend down the incline. At the bottom of the Hump are over forty separate tracks. The setting of rail switches allows each car or cluster of cars to be directed on to one or another track. [13] Once the cars have come to a stop on the track to which they have been directed the cars are then reassembled in advance of their departure. The reassembly is accomplished by yard conductors using yard locomotives to push the cars along the rails until the cars have been strung together in a proper order. Once the cars have been properly assembled they are ready to depart for the next leg of their journey. [14] The size of the operation in the Walker Yard is remarkable; the Yard and its tracks extend for several miles. The cars entering and then leaving the Yard weigh 30 tons when empty and can weigh 120 to 130 tons when full. Strings of rail cars entering or being made ready to leave the Yard are often a mile long. Every hour of the year cars are pushed along the many tracks of the Yard as they are marshaled into trains. [15] Safety is a paramount concern at CN, as was evidenced during our site visit. We were issued safety equipment and shepherded very carefully about the site on the tour. Safety is a part of the very design of railroad equipment. As an example, the braking system on trains employs air pressure. The air pressure is not, however, used to apply the brakes; it is used to release them. This design ensures that if air pressure is lost through a failure of the equipment, the train will stop. CN employees describe this as a `fail safe;' equipment is designed so that a failure will result in a safe rather than a dangerous situation. (ii) The Beltpack [16] One of the technical advances to be introduced at the Edmonton Yard is the beltpack or Locomotive Control Unit (L.C.U.). A beltpack allows a yard conductor to operate a locomotive like a remote control car. The unit, weighing about 6 pounds, is worn strapped to the body by a harness. It has switches, dials and toggles that allow the yard conductor to start, stop and control both the speed and direction of the locomotive. The beltpack is also equipped with a safety feature. If the beltpack is tipped beyond a 45 degree angle, the beltpack will stop the locomotive after a few seconds unless the unit is reset by the conductor. This is an emergency function designed to prevent injury, or further injury, should a conductor fall or become incapacitated while operating a locomotive. The beltpack is another example of fail safe design. [17] Prior to the implementation of beltpacks in or around 1995, crews of three people were used to marshal trains. One person, locomotive engineer, was placed in the locomotive itself while the other two would be on the ground at either end of the locomotive. The three communicated by radio. Three man crews were still used in the Walker Yard on occasion at the time relevant to this complaint. When the beltpacks were implemented, CN's general operating instructions directed that each of the two yard conductors would carry a pack and further that the conductor at the `leading end of the movement' was to be controlling the train. The leading end of the movement is the `front' of the train. When the train changes direction, the leading end switches from one end to the other. As the trains often change direction during the marshaling process, the conductors must alternate control between them as direction changes. This procedure is called `pitch and catch.' Upon the train changing direction, one yard conductor `pitches' control of the train to the other. [18] At the time relevant to this complaint, there was a disagreement at CN over whether it was safe for a two person yard conductor team to be deployed with only one conductor using a beltpack and the other using a two-way radio. The Union believed this would be unsafe. Management disagreed. Minutes of CN's Health and Safety Committee demonstrate that this disagreement was a live issue. CN's general operating instructions at the time required that on a two conductor crew, both conductors were to use beltpacks. The operating instructions also directed that, should one beltpack malfunction, the crew was to retrieve a new pack as soon as reasonably possible. (iii) CN's Seniority System - The Spare Board [19] The Respondent runs its operations around the clock. Trains are marshaled twenty-four hours per day, each day of the year. Shift work is a fact of life for a railroader and so is the unpredictability of one's schedule from day to day and from week to week. [20] The work schedules of yard employees at CN are determined by seniority. Employees with sufficient seniority may receive a regular assignment. These employees are advised each Friday of their schedules for the whole of the upcoming week. Even after receiving a regular assignment, however, an employee might be advised on short notice that his or her services are required in a position senior, or higher in CN's job hierarchy, to that of their regular assignment. These more senior positions, once offered, must be accepted by the employee. [21] Employees with less seniority have their schedules determined by the spare board. The spare board is a tool that allows the employer to appoint employees to required shifts and assignments. Employees are listed on this board in order of seniority and shifts are assigned in that order. More senior employees on the spare board receive more regular shifts at more favored times of the day and days of the week, while less senior employees receive less regular assignments at less favored times of the day and days of the week. [22] To secure a particular shift for an employee, or to allow an employee to avoid a particular shift, it will usually be necessary to exempt them from the unpredictable realities of the spare board. This status is called `super seniority.' The Union's consent is required before an employee can receive this status. (iv) CN's Accommodation Policy [23] CN has a policy in place for dealing with employees who require accommodation. Its Accommodation Guide for Managers and Supervisors identifies that (c)ourt decisions have required employers to provide accommodation to the extent that this does not create undue hardship and further, that (t)he costs incurred must be extremely high before the refusal to accommodate can be justified. [24] A document entitled Accommodation Checklist for Managers and Supervisors outlines the accommodation process to be engaged when accommodation is sought. The checklist directs the Manager or Supervisor to first meet with the employee in respect of the accommodation requirement; to identify the essential requirements of the employee's regular position; to consult with other representatives of CN as necessary and to consult with the Union; to then decide whether the employee's existing job function might be adjusted to accommodate or whether the employee might be assigned different job duties to accommodate his or her requirements or restrictions. Managers and Supervisors are directed to inform the employee of their decisions, to give reasons for those decisions, and to keep careful records of the steps taken in the accommodation process. III. THE FACTS GIVING RISE TO THE COMPLAINT [25] In February of 2002, after 11 years of service with the respondent, Ms. Hoyt learned that she was pregnant. She began to experience some pain and discomfort on the job. She was examined by her doctor and the doctor wrote a letter to CN explaining that, as a result of her pregnancy, Ms. Hoyt required some modifications to her job. Ms. Hoyt, the doctor directed, must avoid hazards, avoid particularly strenuous activities and work regular hours. The doctor also directed that she was not to use a beltpack. [26] On February 18, 2002, Ms. Hoyt gave the doctor's letter to a CN Superintendent who advised her that she should go home on an unpaid leave of absence status until CN had time to consider the matter. A. CN's First Offer of Accommodation [27] On February 25, 2002 an Assistant Superintendent provided Ms. Hoyt with a letter detailing the accommodation that CN had designed. CN had proposed that she be placed on an afternoon shift as a yard conductor on the Walker Hump. This position would require Ms. Hoyt to wear a beltpack. In the letter CN asked for further clarification of her medical restrictions and concluded: At this time are no modify (sic) duties where L.C.S. equipment is not involved. Based on all testing and technical reports the Company's position is that the L.C.S. equipment falls within all regulatory guidelines and does not pose health related problems. If you feel you can not operated (sic) the L.C.S. equipment the Company will grant you a leave of absence without pay. At this time it is not reasonable practicable (sic) to modify your job function where the L.C.S. equipment is not used. The reference to L.C.S. equipment is a reference to the beltpack. [28] Ms. Hoyt was distressed by this offer of accommodation. The Hump position, in her experience, was more rigorous than her regular yard conductor job. In that position a single yard conductor worked alone to disengage cars, singly or in clusters, before the cars began to descend down the track. The position was, in her view, difficult and relentless. The position also required the use of the beltpack. Her doctor had directed that she must not use the beltpack. She called her union. The Union had no knowledge of CN's accommodation proposal. [29] Ms. Hoyt re-attended at her doctor's office the next day. The doctor provided a more detailed letter explaining why the beltpack was not to be used: The wearing of a beltpack will cause abdominal pressure and weight on the developing fetus. It will also contribute to backache as the pregnancy progresses. It is best then that the beltpack not be employed for the remainder of the pregnancy. Ms. Hoyt provided this second letter to CN. B. CN's Second Offer of Accommodation [30] After receiving this second doctor's note, CN developed a second plan for accommodation and communicated this second proposal to the Union. CN proposed that Ms. Hoyt work in her former position of yard conductor, but that she would not wear a beltpack and would instead be supplied with a radio. Her co-worker would control the train in both directions. CN also proposed that she would work a regular afternoon shift, and so Ms. Hoyt would require super seniority status. The Union's consent would be required. [31] The Union reviewed this second proposal and expressed two concerns. The first concern was safety. As mentioned, the Union had long taken the position that it was dangerous to employ only one beltpack in a two conductor crew. The Union also expressed a concern about the super seniority status. It asked CN for an assurance that any employee who lost a shift as a result of this status being conferred on Ms. Hoyt be compensated. CN refused to give this assurance. The Union rejected this proposal primarily on the ground of safety and secondarily on the ground of seniority. [32] Ms. Hoyt shared the concerns expressed by the Union. She too felt that working as a yard conductor without a beltpack was unsafe. She was also concerned that, should CN place her in a position on the Yard outside her seniority status, she might suffer harassment on the work site. Ms. Hoyt testified that a female colleague of hers had received such an accommodation in the recent past. Ms. Hoyt heard and was required to defend her colleague from the disparaging comments of other workers as they complained that special treatment was being given to the women. Her colleague's car was vandalized during this time period. Ms. Hoyt was concerned that she now would be the target of these comments. [33] The Union proposed some other positions that might be used to accommodate Ms. Hoyt, including the following: placing her in a `utility' position, being a general helper, on the Yard; placing her in a `utility' position on the Hump; having her drive a crew van on the Yard; assigning her to sedentary work in one of CN's administrative offices; assigning her to a three-man crew, which crews did not use beltpacks. Each of these proposals were rejected by CN. [34] On March 1, 2002, C.N. wrote to Ms. Hoyt: The Company undertook an investigation of alternate duties or modifications to your existing duties due to your maternity related circumstances. The result of such investigation concluded that at this time the Company is unable to offer you accommodation. Your physical restrictions do fall within the parameters of the Assistant Conductor position at Walker yard west tower afternoon assignment, however your seniority does not allow you to hold same within your own right. In order to assign you to one of these positions, the company requires the agreement of the CCROU UTU. The company discussed the accommodation with the union however they were not willing to enter an agreement that would override the seniority provisions of the collective agreement. The company will continue looking for available opportunities that fall within your restrictions and advise you accordingly. If you have any questions or require further information please contact the undersigned at . . . The reference to the CCROU UTU is a reference to the Union. [35] Ms. Hoyt remained off work on unpaid leave. She did receive some sick benefits during the relevant time period. [36] Ms. Hoyt wrote to her employer by letter dated March 4, 2002 requesting information. She wanted to be advised of what positions CN had considered for her and who her contact person would be at the Company. She received no response to this request. Ms. Hoyt also filed a complaint with Human Resources Development Canada, alleging her employer violated its accommodation obligations under the Canada Labour Code, filed a complaint with the Canadian Human Rights Commission and participated in the grievance process with her Union. C. CN's Third Offer - The Crew Van Position and Child Care [37] On May 25, 2002, after being on unpaid leave for three and a half months, the complainant was advised by CN that it had a position for her driving a crew van on the Walker Yard. She would work the afternoon shift from Tuesday through Saturday each week commencing Tuesday, May 28, 2002. Ms. Hoyt accepted the job immediately. [38] The Hoyts had a two-year old child at home. Before her pregnancy gave rise to her need for accommodation, Ms. Hoyt described that her schedule was quite variable. She worked off the spare board and received two-hour notice of her assignment to day, afternoon or midnight shifts. If her husband was at work, she would call friends and neighborhood teenagers to look after her daughter. The caregiver would attend at the Hoyt's home. Her daughter was never cared for outside her own home. [39] When she learned of her new schedule, Ms. Hoyt knew that she would have to arrange child care for her daughter. She also knew that she would require care for her daughter every Saturday as her husband's position at CN and his seniority status meant that he was required to work almost every Saturday. [40] Back in February of 2002, when she first learned she was pregnant and was advised by her doctor that she required accommodation, Ms. Hoyt assumed that she would receive a regular shift and would need to arrange child care. She contacted a woman in a nearby town who ran a home day care. This woman, married to a railroader, was familiar with the lives of families in that industry and was willing to accommodate their rather unusual child care needs, accepting children day or night, seven days a week. Ms. Hoyt secured a spot for her daughter at this facility. She was not accommodated promptly as she had expected. When she called this same facility in late May, she learned that they were no longer able to accept her daughter. [41] Ms. Hoyt contacted other people, mostly neighborhood teenagers, who had provided service to her in the past. She was, in the short period of time between May 25 and 28, able to secure child care for her daughter, except for three Saturdays in June. [42] When she returned to work on May 28, 2002, Ms. Hoyt advised CN of her child care problem. She asked as an accommodation that her schedule be altered so that she would not be required to work Saturdays for those three weeks. Assistant Supervisor, Rick Sherbo, advised her that he would see what he could do. [43] On June 4, 2002, Ms. Hoyt went back to Mr. Sherbo's office to see what arrangement had been put in place. She was advised that CN would accommodate her by allowing her to take unpaid leave for those days. [44] Ms. Hoyt became upset. She had a verbal altercation with Mr. Sherbo before her shift was scheduled to start. Upon leaving his office she realized that she was unfit to work. She was very upset and felt unable to safely drive the crew van. She left work and while driving home started experiencing shortness of breath and some physical pain in her abdomen. She was worried about her own health and the health of her fetus. She had experienced medical difficulties during her first pregnancy. She drove directly to the hospital. She was observed, undertook some tests and was discharged the same day. The next day she attended at her doctor and was advised that the stress she was continuing to experience around the accommodation of her pregnancy was endangering her health and might harm her fetus. She was directed to stay off work for a month. [45] Ms. Hoyt remained at home as directed. Her application for Worker's Compensation Benefits was contested by CN and was unsuccessful. She received some sick benefits. [46] In early July of 2002, Ms. Hoyt returned to work driving the utility van and continued to carry out that function until she left on maternity leave. Her second child was born in the fall of that year. IV. ANALYSIS [47] Section 7 of the CHRA identifies that it is a discriminatory practice to refuse to employ or to continue to employ an individual, and to differentiate adversely in relation to any individual on a prohibited ground of discrimination. [48] The onus is first on the complainant to establish a prima facie case of discrimination. Upon the complainant discharging this onus, the evidentiary burden shifts to the respondent to establish that the measure adopted or decision made was based on a bona fide occupational requirement and that accommodation would impose undue hardship (section 15(1)(a) and 15(2), CHRA). A. Has the Complainant Demonstrated a Prima Facie Case of Discrimination on the Basis of Sex? [49] A prima facie case of discrimination 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 favor, in the absence of an answer from the respondent-employer.(O'Malley v. Simpson-Sears Ltd. [1985], 2 S.C.R. 536 at para 28). [50] Discrimination on the basis of pregnancy is discrimination on the basis of sex (see section 3(2) of the CHRA and Brooks v. Canada Safeway Ltd. [1989] 1 S.C.R. 1219). [51] I find on the evidence of the complainant that a prima facie case of discrimination on the basis of sex has been made out. In particular, the complainant's evidence demonstrates that CN refused to continue to employ her and that CN differentiated adversely in relation to her on a prohibited ground of discrimination. (i) Refusal to Employ or to Continue to Employ [52] Ms. Hoyt became pregnant. She began experiencing some pain and discomfort at work. She went to her doctor. Her doctor examined her and in a letter made four clear and simple directions. She brought the letter to CN. She was told to go home and was placed on unpaid leave status. [53] CN made two offers of accommodation to Ms. Hoyt in February of 2002. Ms. Hoyt rejected the first proposal and the Union, with her support, rejected the second. [54] The accommodation proposals made by CN engage the Supreme Court of Canada's analysis in Renaud [1992] 2 S.C.R. 970 at para. 39 and reminds us that where an employer has communicated a proposal that would fully accommodate an employee's needs or restrictions and that is reasonable in the circumstances, the employer's duty is satisfied. It then becomes the duty of the employee and, in a collective bargaining environment, the duty of the Union, to accept and to facilitate the implementation of the proposal. If an employee's need for accommodation is fully and properly satisfied, the employer will not be required to demonstrate that the accommodation amounted to undue hardship. [55] The Federal Court of Appeal has also considered this issue. Pelletier JA writing per curiam in Hutchinson v. Canada (Minister of Environment), [2003] 4 F.C. 580 at para. 75, noted that where the conduct of an employer can be demonstrated to have taken reasonable steps and to have made reasonable proposals that would meet an employee's limitations, the employee has not been adversely treated and a prima facie case will not be made out. [56] I find that neither of CN's proposals accommodated Ms. Hoyt's requirements. [57] CN's first accommodation proposal was directly contrary to at least one of the medical restrictions identified by her doctor. She was told by her doctor not to use a belt pack. The position required the use of the beltpack. Ms. Hoyt also believed that the position would be unduly strenuous and so in violation of a second of her doctor's directions. This offer was not of a nature contemplated by Renaud; it did not accommodate the restrictions identified by her doctor. [58] CN's second accommodation proposal also failed to accommodate Ms. Hoyt. While this proposal, if implemented, would have met each of the restrictions identified by Ms. Hoyt's doctor, the proposal gave rise to other significant concerns: safety and seniority. [59] The Union took the position that this proposal would make Ms. Hoyt unsafe on the Yard. Ms. Hoyt, an experienced yard conductor, shared that concern. CN's general operating instructions required both conductors wear a beltpack when employed on a two conductor crew. CN's proposal would exempt Ms. Hoyt alone from this workplace direction. As mentioned previously, safety is a priority at CN. Safety measures are a part of the equipment and part of the culture of this industry. The safety concern was reasonable in the circumstances and represented another of Ms. Hoyt's needs for accommodation. The position offered did not meet this need and so did not fully meet Ms. Hoyt's requirement for accommodation. [60] Discrimination can arise from both conduct that creates practical disadvantage and from the messages that such conduct can convey (Vriend v. Alberta [1998] 1 S.C.R. 493 at para. 100). The message conveyed by this proposal is palpable. If implemented, the proposal would mean that Ms. Hoyt - only Ms. Hoyt - only the pregnant woman - would be navigating the Walker Yard, among its 40 tracks, the moving rail cars weighing 30 to 130 tons and stretching as much as a mile long, without the equipment, the protection, that the general operating instructions afford every other employee on a two conductor crew. The message that the implementation of this proposal would send is prima facie discriminatory. [61] This proposal also created for Ms. Hoyt a reasonable apprehension that she would be exposed to further discrimination should she be given super seniority status. This concern was based on the recent experience of a colleague, who suffered inappropriate comments from co-workers and other mischief. This concern of Ms. Hoyt's was another element of her need for accommodation and CN's second proposal did not meet this need. [62] Having rejected the offers of accommodation, Ms. Hoyt remained on unpaid leave for three and a half months. Ms. Hoyt was not sick. She was not injured. She was a healthy woman in the early stages of pregnancy. I find that the prima facie case is made out. Between mid February and late May of 2002 the complainant was a victim of discrimination because her pregnancy was not properly accommodated. (ii) Differentiating Adversely [63] There is also evidence that Ms. Hoyt was treated differently and adversely compared to other employees not sharing her personal characteristic of pregnancy. [64] Marvin Sawatzky gave evidence at the hearing. Mr. Sawatzky, a CN conductor and locomotive engineer, injured his ankle three days before Ms. Hoyt made her request for accommodation. Mr. Sawatzky got a note from his doctor, took it to CN and was told to come in the next day. He first worked in the administration office and was later given a position driving a crew van. His shift was Monday to Friday commencing at 7:30 a.m. While Mr. Sawatzky was paid for the full shift, he left the work site after lunch each day to attend physiotherapy. He went home after his appointment. Mr. Sawatzky returned to his regular assignment in early May. [65] Ms. Hoyt's husband, who worked as a conductor at CN among other positions he performed for this employer, became unable to use the beltpack nine days after Ms. Hoyt's need for accommodation arose. A problem with the pack's harness was causing Mr. Hoyt to experience back pain. Like Mr. Sawatzky, Mr. Hoyt delivered a doctor's note to CN outlining his requirement for accommodation. He was told to come in the next morning. Mr. Hoyt joined Mr. Swatzky in an administration office on the yard doing administrative work. He was later re-assigned to a point protection position that entailed his operating a locomotive on a three-person crew. Three-person crews do not use beltpacks. He returned to his regular assignment in early April 2002 after CN had successfully made adjustments to his harness. Mr. Hoyt was not assigned to a two- conductor crew with a radio instead of a beltpack. [66] CN could not, however, find accommodation for Ms. Hoyt beyond the proposals made. She sat at home. [67] This differential treatment itself makes out a prima facie case of discrimination (Saskatchewan (Human Rights Commission) v. Canadian Odeon Theatres Ltd. (1985), 6 C.H.R.R. D/2682 at D/2689). CN's failure to afford reasonable accommodation to Ms. Hoyt between mid-February and late May, 2002, particularly when other employees were accommodated seamlessly, is sufficient evidence to make out a prima facie case of discrimination. The onus now shifts to CN to justify its conduct on a balance of probabilities. B. CN's Justification [68] CN's justification is that it had made a reasonable proposal of accommodation that met its legal duty to accommodate and that Ms. Hoyt and the Union failed to discharge their duty to accept the reasonable accommodation. The Union was further at fault because it did not communicate its rejection of the proposal until late April, 2002. Finally, there were no other positions at CN that could be offered to Ms. Hoyt until the crew van driver position became available. CN's evidence on the issue of justification is as follows. [69] CN's objectives when it attended to Ms. Hoyt's request for accommodation were twofold. First, they preferred to keep employees engaged in their craft as much as that was possible. Second, they preferred to engage employees only in viable accommodative positions, meaning positions valuable to CN's operations. [70] When the complainant's request for accommodation and doctor's note were first received, CN assistant supervisor, Rick Sherbo, made some inquiries of other CN departments to see if they had anything available for `a pregnant woman.' He found nothing. CN was downsizing its administrative positions at the time and CN had recently eliminated some positions created to accommodate employees as the positions had been found to be of no value to the company. [71] Mr. Sherbo shared the doctor's note with his superior, Mr. Valliere. They were of the opinion that beltpack use posed no medical concerns to a pregnant woman. The two were also unclear about the restrictions regarding hazards and overly arduous activities. They decided to offer Ms. Hoyt a beltpack position on the Walker Hump. They felt this position to be less strenuous than a position on the yard. They also decided to ask for clarification from Ms. Hoyt's doctor regarding her restrictions. This position would satisfy CN's objectives in accommodation. [72] Upon receiving the second doctor's note, Mr. Sherbo and Mr. Valliere discussed the matter again. The second position, that Ms. Hoyt would work on a two-conductor crew without a beltpack, was settled on as it would meet CN's accommodation objectives and satisfy the restrictions identified by the doctor. `This is basically what we came up with as viable accommodation,' testified Mr. Sherbo. CN took this proposal to the Union. The Union, as we know, rejected the proposal. [73] Mr. Sherbo then wrote the March 1, 2002, letter to Ms. Hoyt advising her that the Union had rejected their proposal of accommodation and that there were no other positions available at CN to accommodate Ms. Hoyt's pregnancy. [74] The alternative solutions proposed by the Union were dismissed because in CN's view they were `not viable.' [75] Mr. Sherbo said that he continued, from time to time, to make inquiries about available positions. He found none. He also advised that after March 1, 2002, the matter `went upstairs.' He was unaware of decisions made or CN's reasoning behind decisions made after that date. [76] In mid-March, 2002, a month after Ms. Hoyt made her first request for accommodation and a month after she had been sent home on unpaid leave, Susan Blackmore, a CN human resources officer, became involved in the file. CN asked Ms. Blackmore to try to convince the Union to change its mind and to consent to the second proposal of accommodation. CN felt the accommodation was a `good and viable' solution. She spoke to a union representative and followed up with correspondence asking for a response. Ms. Blackmore testified that she was hopeful that the Union would change its position and that while she awaited a response she made a few informal inquiries of other departments to see if there were any positions available. She found no position for Ms. Hoyt. Ms. Blackmore described that `at CN there are limited opportunities to accommodate.' At the end of April, the Union presented a formal policy grievance on Ms. Hoyt's behalf. It was only then, she testified, that she realized that the Union would not change its position. [77] At the end of May 2002, Ms. Hoyt was offered the crew van position. CN's witnesses did not know when and how the crew van position became available. That decision was made by Mr. Valliere. He was not called as a witness. C. Was CN's Conduct Justified? Was it a BFOR? [78] Section 15 of the CHRA directs that where an employer's conduct is based on a bona fide occupational requirement (BFOR), the conduct will not be a discriminatory practice. [79] To meet its evidentiary burden, an employer must demonstrate that it discharged its duty of reasonable accommodation short of undue hardship (Ontario v. Simpson Sears [1985] 2 S.C.R. 536, see also Central Alberta Dairy Pool v. Alberta (Human Rights Commission) (1990) 12 C.H.R.R. D/417). [80] The Supreme Court of Canada decision in British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union (B.C.G.S.E.U.) (Meiorin Grievance) [1999] 3 S.C.R. 3 (Meiorin), sets out the content of an employer's duty to accommodate and the analysis by which an employer's efforts must be assessed. [81] To establish this justification, that is, a BFOR, the employer must prove: that the standard was adopted or a decision made for a purpose rationally connected to a legitimate work related purpose (Meiorin, supra at para. 58); that the standard adopted or the decision was made in an honest and good faith belief it was necessary to fulfill this work related-purpose (Meiorin, supra at para. 60); that the standard adopted or decision made was on the evidence reasonably necessary to accomplish this work related purpose (Meiorin, supra at para. 62). (i) Rational Connection [82] To satisfy the first arm of the test in Meiorin, the employer must demonstrate that a decision made is rationally connected to a work-related purpose. The focus in this first step is not the validity of the particular decisions made, but rather the validity of the more general purpose. [83] The decisions made by CN in its attempts to accommodate Ms. Hoyt were, first, to send her home on unpaid leave until they considered the doctor's note; next to offer her a position on the Walker Hump; and next to offer her a position as a conductor on the yard without wearing a beltpack. CN could find no other positions to accommodate Ms. Hoyt until late May, 2002. [84] CN gave two reasons for the decisions made regarding Ms. Hoyt's accommodation. CN preferred to keep employees working in their craft where that was reasonably possible. CN also preferred to have employees working in jobs that were viable, meaning valuable to its operations. [85] I find these general overall purposes, being a desire to maintain employees in their craft, and that of economic viability, to be reasonable, and the decisions rationally connected to CN's stated objectives. (ii) Honest and Good Faith Belief [86] Step two of the Meiorin test is the subjective element of the test. The employer must demonstrate that it adopted a particular standard with an honest and good faith belief that the decision was necessary to accomplish its objective. The employer must also demonstrate that it had no intention of discriminating against the claimant.' (Meiorin, supra, at para. 60). [87] I find that CN has not discharged its onus at this second step of the analysis. [88] CN is a large and sophisticated employer. CN has both a Risk Management and a Human Resources Department with many employees engaged on a daily basis with matters of accommodation. Human Resources employees represent their employer in arbitrations of workplace grievances, respond to complaints made by employees under the Canada Labour Code and complaints filed under the CHRA. CN has ample resources and it is appropriate to deem that this employer understands the content of its duty to accommodate as that duty has been prescribed under the Act and articulated by this Tribunal and our courts. [89] CN has accommodation policies that set out a reasonable, if superficial, articulation of the content of the duty to accommodate and sets out the processes to be employed by CN supervisors and managers when considering accommodation requests. CN failed to follow much of its own accommodation policy when dealing with Ms. Hoyt's request for accommodation. [90] In all of the circumstances I find that CN did not believe or was reckless to believe that its decision was reasonably necessary and did not believe, or was reckless to believe that it was not discriminating against Ms. Hoyt in its accommodation efforts. [91] As identified earlier in these reasons, the offers of accommodation made to Ms. Hoyt did not meet her need for accommodation. Further, as I will explain in more detail below, CN's efforts to accommodate Ms. Hoyt fell woefully short of meeting its duty to accommodate her as that duty is explored below and failed to properly follow its own accommodation policy. CN knew or ought to have known that it was engaging in a discriminatory practice. CN fails this second arm of the test. (iii) Reasonable Necessity [92] The third step of the Meiorin test requires the employer to prove, on a balance of probabilities, that the decision, or decisions, made are reasonably necessary to accomplish its work-related objectives. The decision will be reasonably necessary if the employer is able to demonstrate that it cannot accommodate an employee without experiencing undue hardship (Meiorin, supra, at para. 62, see also Hutchinson, supra, at para. 70 and Audet v. CN, 2006, CHRT 25, at para. 50). [93] CN made two proposals of accommodation which would serve its objectives of keeping Ms. Hoyt in her craft and ensuring she worked a position that was valuable to CN's operations. I found earlier that neither of these proposals met Ms. Hoyt's reasonable needs for accommodation. The first did not meet the medical restrictions enumerated by her doctor. The second gave rise to significant safety concerns and a concern that a super seniority status would cause Ms. Hoyt to suffer further discrimination. The Union also reasonably rejected this proposal. [94] CN concluded that it could offer no other position to Ms. Hoyt and that she would remain home on unpaid leave. Was this decision reasonably necessary in the sense contemplated in Meiorin? I find that it was not. [95] We are directed in this third arm of the test, to look first at the process or procedures adopted to assess the issue of accommodation, and second, to look at the substantive content of the decision made (Meiorin, supra, at para. 66). [96] An employer must demonstrate that the process or procedures adopted to assess the issue of accommodation were appropriate. An employer must be sensitive to and respectful of the skills, capabilities and potential contributions of employees requiring accommodation (Meiorin, supra, at para. 64 see also Audet, supra, at para. 51); an employer must investigate alternative approaches to accommodation that might be less discriminatory, and demonstrate that any alternative approach considered was rejected only for appropriate reasons (Meiorin, supra, at para. 65 see also Audet, supra, at para. 62); an employer must be innovative and practical in assessing accommodation issues. I find that CN did not meet these process requirements. [97] I find that CN was not sensitive to or respectful of Ms. Hoyt's skills, capabilities and potential contributions. CN did not take steps to discover Ms. Hoyt's actual skills and abilities. CN did not even meet with Ms. Hoyt in any meaningful way during this time period, even though its own accommodation policy directs that the employee be met with as a first step in the process. CN prepared no detailed profile of Ms. Hoyt's skills and abilities to assist CN in its canvass. Ms. Hoyt was a healthy woman with a lot to give her employer. We know she had welding experience and, as a long time employee of CN, much knowledge of its operations. What other skills and capabilities might she have? This step of information gathering is crucial to the accommodation process and this step was ignored by CN. Without a true appreciation of who Ms. Hoyt was and what she could do to help the company, it is unlikely that an employer will be able to properly attend to other of its procedural obligations. [98] I find that CN failed to demonstrate that it had carefully considered any alternative approaches to the accommodation of Ms. Hoyt. CN did not demonstrate that it had itself generated and considered any alternatives to the proposals made. This is notwithstanding the directions in its own accommodation policy that inquiries be made, alternatives considered carefully and that records be kept of every step of the process. There were no records introduced in evidence. Further, CN dismissed the proposals submitted by the Union. At least some of the positions proposed would have kept Ms. Hoyt in her craft or a position fairly closely related to her craft and so would have met CN's first objective in accommodation. The reason CN dismissed these proposals was that they were, in its view, not viable. CN led no evidence that it made careful consideration of each of these proposals, or that it considered carefully the costs of implementing any of these proposals, or evidence that the cost would be undue. CN did not demonstrate that its rejection of the Union's proposals was based on appropriate considerations. [99] CN's efforts to accommodate Ms. Hoyt, beyond making the two proposals discussed earlier, was limited to telephone inquiries. Contrary to the direction in CN's accommodation policy, no records were kept of these inquiries and so we are unable to know the breadth, depth and persistence of this search. Ms. Blackmore testified that she made telephone inquiries of other departments after she became involved in the matter in mid-March of 2002. Mr. Sherbo's evidence was that he too phoned various CN departments looking for accommodation for an employee `who was pregnant.' He would also make these inquiries in person on some occasions. This type of informal canvass falls far short of the obligation identified in Meiorin. It is also demeaning to Ms. Hoyt and underscores the importance of the prior step of information gathering and its critical relation to the preservation of her human dignity. [100] With these telephone inquiries CN was looking for available positions, meaning job vacancies, taking the position that if there were no vacancies, CN was unable to offer accommodation to an employee. [101] While this very narrow approach to a search for accommodative positions would meet CN's work-related objective of viability, it does not, without more, meet its duty to accommodate. McLachlin J. observes in Meiorin that . . . it may be ideal from the employer's perspective to choose a standard that is uncompromisingly stringent. She goes on to describe, however, that for a standard to be justifiable under human rights legislation, (it) must accommodate factors relating to the unique capabilities and inherent worth and dignity of every individual, up to the point of undue hardship (Meiorin, supra, at para. 62). CN did not demonstrate that this narrow approach to accommodation was the best it could do short of undue hardship. [102] Employers must be innovative in their search to accommodate an employee. They must be flexible and creative. CN did not demonstrate adequate innovation, flexibility or creativity. [103] I find the decision in Saunders v. Kentville (Town) [2004] N.S.H.R.B.I.D. No. 9, to be instructive. In that case, a Nova Scotia Board of Inquiry considered the complaint of a police officer alleging that she was not accommodated by her detachment because of her sex/pregnancy. Chair Deveau employed a Meiorin analysis in the context of a small police force in Nova Scotia. The Chair found that even in this small force of 12 to 14 officers, and even where accommodation would be awkward and inconvenient, the employer failed to discharge its duty to accommodate as it made little effort to assemble a number of duties and functions on a temporary basis in searching for ways of accommodating the claimant. The employer, he found, had a duty to fully and completely explore opportunities for light duties to the point of undue hardship. The employer had not proven that it had done that. [104] CN is a much larger operation. CN had approximately 100 employees working in the yards of the Edmonton Terminal at the relevant time and another 200 or so employees working in the downtown administration building. With so many job functions being carried out at the Edmonton Terminal, surely an employer who is properly innovative and flexible could attempt to create, modify or re-package one or more of these job functions to accommodate Ms. Hoyt in a manner that met its work-related objectives. CN led no evidence that it had engaged in this type of inquiry. [105] Moving beyond the process employed by CN in considering its accommodation of Ms. Hoyt and viewing the substance of the decisions made, it is clear that CN failed to demonstrate that its decisions were justified in the manner contemplated by Meiorin. CN led no evidence to suggest that it would suffer undue hardship by extending to Ms. Hoyt an alternative position as accommodation. As this Tribunal has recently observed, an employer must demonstrate undue hardship `in real, concrete terms' (Audet, supra, at para. 106). I find that CN has not demonstrated that on receiving Ms. Hoyt's first request for accommodation it was impossible to find her a position the next day, as it did for Mr. Sawatzky and Mr. Hoyt. [106] CN has failed to discharge its evidentiary burden under section 15(1)(a) of the CHRA; it has not demonstrated that it would be impossible for it to accommodate Ms. Hoyt's pregnancy without suffering undue hardship. D. Did the Union Obstruct CN's Attempts to Accommodate Ms. Hoyt? [107] CN alleged in their statement of particulars that the Union obstructed its attempts to accommodate Ms. Hoyt. First, the Union refused its consent to the two-conductor/one beltpack position. Second, the Union did not communicate its position until April of 2002 and, as a result, Ms. Hoyt's accommodation was delayed. [108] I find that the Union did not obstruct the accommodation efforts. First, the Union did not act improperly in rejecting CN's proposed accommodation. I noted earlier that the safety and seniority concerns expressed by the Union and shared by Ms. Hoyt were elements of her reasonable need for accommodation. In these circumstances, the Union's rejection of CN's proposed accommodation was not improper. Further, the Union's duty to facilitate accommodation arises only when its involvement is required to make accommodation policy and no other reasonable alternative resolution of the matter has been found or could reasonably have been found (Renaud, supra, at para. 50). I found earlier that CN had failed to demonstrate that there were no alternative positions that Ms. Hoyt could have been offered. [109] I find further on the evidence that the Union did not obstruct CN's accommodation attempt by reason of delay in communicating its position to CN. The Union reasonably rejected CN's second offer of accommodation immediately and repeatedly. The Union, through different of its officers, rejected CN's proposal on February 26, February 28 and March 1, 2002. The Union made several proposals of alternate positions that might be offered to Ms. Hoyt. Each of the Union's proposals were rejected by CN. No further action was taken by CN to accommodate Ms. Hoyt until late May, 2002. I have earlier found that CN has failed to demonstrate that it could not have accommodated Ms. Hoyt promptly. She should have been back to work. [110] Approximately a month after Ms. Hoyt had first asked for accommodation, CN engaged Ms. Blackmore to try to convince the Union to change its mind. Ms. Blackmore testified that she understood that the Union was considering her request and that she hoped the Union would change its mind. Ms. Blackmore and CN waited. Ms. Hoyt remained at home. [111] The Union's evidence was that its position that it was unsafe for a two-conductor crew to be deployed with only one beltpack was a position of very long standing and, further, that it had never considered changing its position in relation to Ms. Hoyt's proposed accommodation. The Union's evidence is that the delay in responding to Ms. Blackmore's inquiries is that it was searching for more information before finalizing its grievance. [112] CN argues that the Union's delay in responding to Ms. Blackmore's request that it reconsider its position, created or contributed to the delay in accommodating Ms. Hoyt. [113] CN's evidence that it thought the Union could be convinced to change its position and was in fact considering such a change in position regarding Ms. Hoyt's accommodation seems somewhat disingenuous given the history of the matter. The Union had long disagreed with this proposed position. Further, Union officers clearly rejected the proposal three times between February 26 and March 1, 2002. [114] It is not necessary for me to find whether CN did or did not have a bona fide belief that the Union was considering changing its position between mid March and late April. I have found that this proposal was neither reasonable nor reasonably necessary. I have further found that CN knew or ought to have known this. Ms. Hoyt should have received accommodation well before Ms. Blackmore became involved in mid-March, more than a month after Ms. Hoyt was placed on unpaid leave. [115] I find that the Union did not interfere with CN's accommodation efforts. E. Has the Complainant Demonstrated a Prima Facie Case of Discrimination on the Basis of Family Status? [116] It is a discriminatory practice under the CHRA to `differentiate adversely in relation to any individual on a prohibited ground of discrimination (section 7(b)).' Ms. Hoyt alleges that in addition to suffering discrimination on the basis of sex, she suffered discrimination on the basis of her family status. [117] Discrimination on this ground has been judicially defined as `. . . practices or attitudes which have the effect of limiting the conditions of employment of, or the employment opportunities available to, employees on the basis of a characteristic relating to their . . . family.' (Ontario (Human Rights Commission) v. Mr. A et al [2000] O.J. No. 4275 (C.A.); affirmed [2002] S.C.J. No. 67]. [118] This Tribunal has considered the evidentiary requirements to establish a prima facie case in a decision that predates the Ontario case, though is clearly consistent with its definition: . . . the evidence must demonstrate that family status includes the status of being a parent and includes the duties and obligations as a member of society and further that the Complainant was a parent incurring those duties and obligations. As a consequence of those duties and obligations, combined with an employer rule, the Complainant was unable to participate equally and fully in employment with her employer (Brown v. Canada (Department of National Revenue, Customs and Excise) [1993] C.H.R.D. No. 7, at p. 13). (See also Woiden et al v. Dan Lynn T.D. 09/02) [119] A different articulation of the evidence necessary to demonstrate a prima facie case is articulated by the British Columbia Court of Appeal in Health Sciences Assn. of British Columbia v. Campbell River and North Island Transition Society, [2004] B.C.J. No. 922. The Court of Appeal found that the parameters of family status as a prohibited ground of discrimination in the Human Rights Code of British Columbia must not be drawn too broadly or it would have the potential to cause `disruption and great mischief' in the workplace. The Court directed that a prima facie case is made out when a change in a term or condition of employment imposed by an employer results in serious interference with a substantial parental or other family duty or obligation of the employee. Low, J.A. observed that the prima facie case would be difficult to make out in cases of conflict between work requirements and family obligations. [120] With respect, I do not agree with the Court's analysis. Human rights codes, because of their status as `fundamental law,' must be interpreted liberally so that they may better fulfill their objectives (Ontario Human Rights Commission and O'Malley v. Simpson-Sears Ltd., [1985] 2 S.C.R. 536 at p. 547, Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114 at pp. 1134-1136; Robichaud v. Canada (Treasury Board) [1987] 2 S.C.R. 84 at pp. 89-90). It would, in my view, be inappropriate to select out one prohibited ground of discrimination for a more restrictive definition. [121] In my respectful opinion, the concerns identified by the Court of Appeal, being serious workplace disruption and great mischief, might be proper matters for consideration in the Meiorin analysis and in particular the third branch of the analysis, being reasonable necessity. When evaluating the magnitude of hardship, an accommodation might give rise to matters such as serious disruption in the workplace, and serious impact on employee morale are appropriate considerations (see Central Alberta Dairy Pool v. Alberta (Human Rights Commission) 1990 2 S.C.R. 489 at pp. 520 - 521). Undue hardship is to be proven by the employer on a case by case basis. A mere apprehension that undue hardship would result is not a proper reason, in my respectful opinion, to obviate the analysis. [122] The evidence particularly relevant to this component of the complaint arises when Ms. Hoyt was given the position of crew van driver in late May, 2002. These facts however are part of the larger story and do not represent a discrete and separate complaint. To receive a proper apprehension of the family status component of this complaint, we must view the facts relevant to this second allegation as part of a continuous transaction between Ms. Hoyt and CN around the issue of her previous request for accommodation. [123] Ms. Hoyt had secured day care for her daughter in February, anticipating that CN would accommodate promptly the restrictions identified by her doctor. She found a facility that could accommodate the unusual requirements of railroad families. CN did not accommodate her promptly. When CN did finally call on May 25 directing that she report to work on May 28, Ms. Hoyt called that day care facility and learned that there were no longer any spaces available. She called other sitters she had engaged in the past, being mostly neighborhood teenagers. These teenagers were not available as they were in school during the week until the end of June. In the three days' notice provided by CN, she was able to make arrangements for her daughter's care, except for three Saturdays in June. [124] When asked why she had not made a more systematic search for a day care placement, Ms. Hoyt described that it would be difficult to find a facility open on Saturdays or open as late as she would require, given that she was assigned an afternoon shift which would require, her to work from 3:00 p.m. to 11:00 p.m. Further, she described that even if she could find a facility, it would not be possible for her to properly check out the agencies or to take the time to acquaint herself and her daughter with the facility. Her two-year old daughter, as mentioned earlier, had never been cared for outside her own home and Ms. Hoyt did not want to put her abruptly in an unfamiliar place with unfamiliar people. [125] When she asked for an accommodation, and in particular asked that she work a shift that would allow her to avoid Saturdays for those three weeks, CN rejected the proposal. CN advised that it would allow her to take unpaid leave for these three Saturdays. [126] CN appears to deny that Ms. Hoyt was adversely treated. It was CN policy to assist parents facing circumstances that left them without child care. Rather than discipline an employee for missing a shift for this reason, CN would allow the employee time off without pay for a few shifts to allow them to make necessary arrangements. CN was treating Ms. Hoyt the same as they treated all other employees with child care concerns. The fact that CN treated Ms. Hoyt the same way that it treated other employees who had child care concerns does not mean that Ms. Hoyt was not adversely treated. [127] CN had failed to accommodate Ms. Hoyt for three and a half months. She was left home on an unpaid leave of absence. By the time CN finally did make the crew van position available, Ms. Hoyt had lost the day care arrangement she had put in place earlier. She was unable to secure alternate care for three weeks. She was offered yet more unpaid leave of absence. In these circumstances, I find that it was prima facie discriminatory for CN not to accommodate the modest requirement arising from its wrongful prior conduct. [128] One is also struck by the difference in treatment extended to Mr. Sawatzky, the employee who drove the crew van before her. He drove the van Mondays to Fridays. Mr. Sawatzky also left early to attend at physiotherapy every day and was paid for those attendances. His needs were met with abundance. Why were Ms. Hoyt's needs for accommodation not met? [129] I find that the prima facie case has been made out. Ms. Hoyt demonstrated on the evidence that she was a parent and that she was incurring the duties and obligations of parenthood. Ms. Hoyt made an attempt to secure, in a very short period of time, good quality child care that would not cause undue distress to her young daughter. She was largely successful and was left with a need to be accommodated for three days. CN's direction that she could stay home those Saturdays, but that she would not be paid, meant that she was unable to participate equally and fully in employment with her employer. F. CN's Justification [130] CN's justification for denying Ms. Hoyt's request that she work Monday to Friday for three weeks in June was that Superintendent Valliere had done some research and determined that the Tuesday to Saturday shift was the most viable shift to CN as cabs were particularly busy on Friday and Saturday and so were more often late to pick up crew members. Late crews cost money. G. Was CN's Conduct Justified? Was the Conduct a BFOR? [131] Turning to the section 15(1)(a) analysis as enunciated in Meiorin, I find the first two arms of the test are made out by CN. First, the decision to create a Tuesday to Saturday shift was rationally connected to CN's work-related objective of productivity. Mr. Valliere determined that the Tuesday to Saturday shift was the crew van shift that would provide the most value to CN. Second, I find that the decision was made in the good faith belief that it was necessary to achieve this objective and that there was no discriminatory animus. [132] I find however that the employer has not discharged its onus under the third arm of the test. No evidence was led that CN would have suffered undue hardship had it adjusted Ms. Hoyt's schedule. Ms. Hoyt would, for three weeks, be working a Sunday or a Monday, days when a crew van was not as valuable to CN. Alternatively, CN would have incurred the cost of engaging another employee to drive the crew van on Saturdays or to direct that the employees requiring transportation call a taxi, as CN did when there were no crew vans in operation. CN led no evidence of the costs involved and has not demonstrated that undue hardship would have been incurred. I find that CN has not discharged its onus in this regard. H. Finding of Discrimination [133] For all these reasons, I find that Ms. Hoyt suffered discrimination on the basis of her sex and her family status in breach of section 7 of the CHRA by reason that the respondent failed to accommodate her, and that CN has not established that its failure to accommodate Ms. Hoyt's sex and her family status was justified based on a bona fide occupational requirement, pursuant to section 15 of the CHRA. Ms. Hoyt's complaint has therefore been substantiated. V. WHAT REMEDIES ARE SOUGHT? A. By the Complainant (i) An Order that CN Review its Accommodation Policy [134] Ms. Hoyt requests an order, pursuant to section 53(2)(a) of the CHRA, that CN take measures in consultation with the Canadian Human Rights Commission, to redress its failure to properly accommodate its employees. [135] I heard evidence during the hearing about CN's history of accommodating employees. CN's evidence identified some `success stories' and the Union's evidence and the evidence of Ms. Hoyt identified some less successful stories. I was provided with grievance arbitration decisions but heard from no employees other than Ms. Hoyt about their experiences when in need of accommodation. I was urged by counsel for the complainant to make a finding of systemic discrimination at CN and to grant the remedy requested on the basis of that conclusion. I find, however, that the evidence before the Tribunal was not of a quality adequate for me to draw any conclusions that there are systemic problems with CN's accommodation processes, or to order a remedy based on such a finding. [136] I do, however, find that the order requested by the complainant should be granted. First, while CN has an accommodation policy, it was not followed. The policy contemplates a careful and consultative relationship between CN and its employees in need of accommodation. CN is first to meet with the employee, to discover what their needs are, to consider options, to document all steps taken and to disclose to the employee the steps taken and the reasons for decisions made. The evidence is clear that CN did not follow these directions when considering Ms. Hoyt's accommodation. [137] The evidence also demonstrates that CN, through its employees charged with facilitating accommodation, adopted an approach to Ms. Hoyt's accommodation that falls alarmingly short of its duty to accommodate. I am satisfied that the CN accommodation policy does not articulate with sufficient clarity the content of an employer's duty to accommodate and the process directives made in Meiorin. I am also convinced that CN has failed to take the steps necessary to ensure that its employees who dealt with Ms. Hoyt's accommodation request understand the content of the employer's duty and follow the process directives in Meiorin. It is for these reasons I find that this request for remedy is justified. [138] I order, pursuant to section 53(2)(a) of the CHRA, that CN cease the discriminatory practice and that CN take such measures, in consultation with the Canadian Human Rights Commission, on the general purposes of the measures, to redress the practice or to prevent the same or a similar practice from occurring in the future, and in particular that CN take such measures as are necessary to ensure that the Respondent and its employees charged with facilitating accommodation understand the content of the employer's duty to accommodate pregnant employees and the procedures to be employed when facilitating same. (ii) Compensation for Lost Wages and Benefits [139] Pursuant to section 53(2)(c) of the CHRA, I order CN to compensate Ms. Hoyt for all wages and benefits that she has lost from February 18, 2002 until the date she returned to drive the crew van in July of 2002. I am advised that Ms. Hoyt has received some monies from CN as partial compensation for wage loss during this period and direct that the compensation be adjusted accordingly. (iii) Compensation for Pain and Suffering [140] Ms. Hoyt testified about the emotional impact that CN's conduct created for her. Ms. Hoyt described feeling bewildered at first. She had assumed CN would discharge its legal duty to accommodate her. She then felt betrayed by her employer, felt unvalued and depressed. Our courts have recognized the centrality of one's employment to one's sense of identity, self-worth and emotional well-being (Reference re Public Service Employee Relations Act (Alta.) [1987] 1 S.C.R. 313 at 368). It is sad but not surprising to hear of the pain caused to Ms. Hoyt by the conduct of her employer. The anxiety and distress of being left at home without any accommodation, without any communication from CN, not even after she had written a letter asking for information, was exacerbated as time dragged on. Ms. Hoyt worried that the time off work would disqualify her from receiving Employment Insurance maternity benefits. CN's conduct took a heavy toll on Ms. Hoyt, a toll visited on her at a time that might otherwise have been a happy time for her and her family as they planned for and dreamed about a new child. [141] Ms. Hoyt suffered significant distress on her return to CN upon accepting the crew van driver position. When she learned that CN again refused to reasonably accommodate her and insisted that, after three and a half months of unpaid leave, her accommodation for child care issues would be three more days of unpaid leave, Ms. Hoyt became very agitated and upset. Her symptoms were acute enough to cause her to go to the hospital very shortly after her altercation with Mr. Sherbo. Her doctor directed that she remain off work for one month as the distress she suffered, and was likely to continue to suffer, at the workplace as a result of CN's most recent discriminatory position, would compromise her own health and that of her unborn child. [142] I find that Ms. Hoyt experienced significant pain and suffering. I order, pursuant to s. 53(3) of the CHRA, CN to pay Ms. Hoyt $15,000.00 in compensation for this pain and suffering. (iv) Special Compensation [143] The complainant asks for special compensation. Under the CHRA the Tribunal has the power to award a maximum of $20,000.00 upon finding that a respondent has engaged in a discriminatory practice wilfully or recklessly (section 53(3)). I have found that CN knew that it was engaging in a discriminatory practice, or was reckless to believe it was not. Special compensation is accordingly appropriate and I award $10,000.00. (v) Legal Costs [144] The complainant asks for an order directing that the respondent pay the legal costs incurred by her during the course of this proceeding. Section 53(2)(c) empowers the Tribunal, where it finds that a complaint is substantiated, to make among other orders, an order that the respondent compensate the victim for `any expenses incurred by the victim as a result of the discriminatory practice.' [145] The question of whether section 53(2)(c) empowers this Tribunal to make awards of legal expenses has been the subject of some manner of controversy in the Federal Court. Two decisions find that the Tribunal does have such jurisdiction (Canada (Attorney General) v. Thwaites (1994) 21 C.H.R.R. D/224, Canada (Attorney General) v. Brooks [2006] FC 500(TD)). One decision finds that the Tribunal does not have such jurisdiction (Canada (Attorney General) v. Green [2004] 4 F.C. 629 (T.D.). [146] The Federal Court decisions upholding the Tribunal's jurisdiction observe that there is no reason to restrict the ordinary meaning of `any expenses incurred' so as to exclude legal costs incurred by a victim. That lawyers and judges might attach a particular significance to the term `costs' provides no basis to argue that the ordinary meaning of `expenses incurred' excludes legal costs (See Thwaites, per Gibson, J.). [147] This Tribunal has asserted the jurisdiction to award costs. Chairperson Mactavish (as she then was) employed a purposeful approach to the question of the Tribunal's jurisdiction (Nkwazi v. Canada (Correctional Service), [2001] C.H.R.D. No. 29). Agreeing with the conclusion in Thwaites reached by employing a conventional statutory interpretation, Chairperson Mactavish noted that human rights legislation, given its fundamental and quasi-constitutional status is to be given a liberal and purposive construction not only in respect to the rights protected under such statutes, but in respect of the remedial powers conferred (Nkwazi, at para. 13; see also Canadian National Railway Co. v. Canada [1987] 1 S.C.R. 1114 at 1136; Robichaud v. The Queen, [1987] 2 S.C.R 84). [148] I agree that a conclusion that the Tribunal has the jurisdiction to make costs awards is sustainable and appropriate under a conventional construction of the legislation. Moreover, such a conclusion is demanded by the liberal and purposive construction that the CHRA properly attracts. [149] I also agree with Chairperson Mactavish that, `where a complaint is substantiated, the task of the Tribunal is to attempt, insofar as may be possible, to make whole the victim of the discriminatory practice, subject to principles of forseeability, remoteness and mitigation' (Nkwazi, supra, at para. 17). And I further agree that the CHRA, in conferring remedial jurisdiction makes it clear that the Tribunal has the power to make the remedial orders that are appropriate having regard to the circumstances of each individual case (Nkwazi, supra, at para.18). [150] First, there can be no question that it is possible for CN to make Ms. Hoyt whole regarding her legal expenses. CN's witnesses confirmed that the company is doing very well financially. A newspaper article was filed as an exhibit in the proceedings. The article from the Toronto Star and dated April 21, 2006, identifies that CN posted a first quarter profit of $362 million in 2006. [151] Secondly, I find no issues arising with regard to forseeability or remoteness that might properly limit an award of legal costs. I have found that CN knew or ought to have known that it was engaging in a discriminatory practice. Ms. Hoyt's legal costs arose as a result of the discriminatory practice. It should have been entirely foreseeable to this sophisticated employer that an employee subjected to the kind of conduct disclosed on the evidence of this case, would retain counsel and incur legal expenses. [152] Third, I am unaware of any facts that might suggest that the issue of mitigation might have application here such that it might properly limit an award of legal costs. I did not find that the complainant or her counsel took unreasonable positions or unduly protracted these proceedings. I am unaware of any offer of settlement that might have been extended by CN in advance of the hearing. If an offer of settlement was tendered exceeding the remedies ordered, such offer might go to the issue of mitigation. Should there have been an offer of settlement of the nature described, I invite further submissions from counsel. [153] I find in the circumstances that, subject to evidence of an offer to settle as mentioned above, the complainant should be reimbursed her legal expenses and I order that CN will reimburse the complainant for her reasonable legal expenses. I would encourage the parties to endeavour to agree on an appropriate amount in this regard, but will remain seized of the matter in the event that no agreement is possible. (vi) Interest [154] Interest is payable in respect of all the awards made in this decision pursuant to section 53(4) of the Act. The interest shall be simple interest calculated on a yearly basis, at a rate equivalent to the bank rate (monthly series) set by the Bank of Canada, per Rule 9(12) of the Tribunal's Rules of Procedure. With respect to the compensation for pain and suffering and the special compensation, the interest shall run from the date of the complaint. (vii) Retention of Jurisdiction by the Tribunal [155] The Tribunal will retain jurisdiction to receive evidence, hear further submissions and make further orders, if the parties are unable to reach an agreement with respect to any issues arising from the within decision and in respect of the interpretation or implementation of the remedies ordered. Should the parties require direction on any remedial matter other than the section 53(2)(a) order, they may do so no more than 60 days after the date of this decision. B. Relief Requested by the Interested Party (i) Legal Costs [156] The Union, an interested party, seeks reimbursement for its legal costs. I find that the Tribunal does not have the jurisdiction to make such an award. Section 53(2)(c) confers jurisdiction to make an award that the respondent compensate `the victim' in respect of expenses incurred `by the victim as a result of the discriminatory practice.' I find that whether under a conventional construction or liberal and purposive construction of this section of the Act, this Tribunal's jurisdiction to award remedies arises only where a discriminatory practice is found to have occurred and then only to the victim of the discriminatory practice. The Union feels aggrieved by the allegations made against it by CN. The Union however, does not allege that it was a victim of discriminatory practice. (ii) Declaration [157] The Union seeks a declaration by the Tribunal that it was not at fault in the actions taken regarding Ms. Hoyt's accommodation. I find that I do not have the jurisdiction to make such a declaration in favor of an interested party. I have dealt with the conduct of both CN and the Union in the body of this decision. This will have to suffice. signed by Julie C.Loyd OTTAWA, Ontario August 18, 2006 PARTIES OF RECORD TRIBUNAL FILE: T1036/1705 STYLE OF CAUSE: Catherine Hoyt v. Canadian National Railway DATE AND PLACE OF HEARING: April 3, 4, 5, 6 and 7, 2006 April 24, 25, 26, 27 and 28, 2006 Edmonton, Alberta DECISION OF THE TRIBUNAL DATED: August 18, 2006 APPEARANCES: Leanne Chahley For the Complainant (No one appearing) For the Canadian Human Rights Commission Joseph Hunder For the Respondent Michael Church For the Interested Party

2006 CHRT 34

CHRT

Schuyler v. Oneida Nation of the Thames

en

2006-08-18

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6729/index.do

2023-12-01

Schuyler v. Oneida Nation of the Thames Collection Canadian Human Rights Tribunal Date 2006-08-18 Neutral citation 2006 CHRT 34 File number(s) T1014/13404, T980/10004 Decision-maker(s) Groake, Paul Decision type Decision Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE KAREN SCHUYLER Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - ONEIDA NATION OF THE THAMES Respondent DECISION 2006 CHRT 34 2006/08/18 MEMBER: Dr. Paul Groarke I. INTRODUCTION II. FACTS A. Performance review: July 2000 B. Cancer: July 2001 C. Part-time: May 6, 2002 D. Return to work: October 15, 2002 (i) The occupation: March 7, 2003 E. Termination III. LEGAL ISSUES A. Retaliation IV. ANALYSIS A. THE FIRST COMPLAINT (i) Whether Ms. Schuyler failed to facilitate the process (ii) Estoppel (iii) Conclusions B. THE SECOND COMPLAINT V. REMEDIES A. Preliminary issues (i) Offer of settlement (ii) The Respondent's request for costs B. Ms. Schuyler's claims (i) Lost wages (ii) Pain and Suffering a) Contributory conduct b) CHRC c) Conclusion (iii) Willful and reckless conduct (iv) Posting the decision (v) Policy review (vi) Costs and expenses (vii) Remaining matters I. INTRODUCTION [1] Karen Schulyer is a member of the Oneida Nation of the Thames in southern Ontario. She left the community when she was young and returned to take up the senior administrative position in the Band Administration. She was later diagnosed with cancer and hospitalized. [2] After Ms. Schuyler left the hospital, she advised the Band that she wanted to return to a part-time position. This did not work out, and she filed a complaint with the Canadian Human Rights Commission, on January 20, 2004, alleging that the Band had failed to accommodate her. [3] When Ms. Schuyler returned to work, her relationship with the Band Council continued to deteriorate. She believed that Council was angry that she filed the first complaint and was retaliating. After a rather arduous series of events, she was dismissed. This led to a second complaint, which was not filed until January 20, 2004. [4] The two complaints were referred to the Tribunal by the Canadian Human Rights Commission (the CHRC). A hearing was held in London, Ontario in May, September and December, 2006. The following decision reviews the evidence led by both sides and disposes of the complaints. II. FACTS [5] It is helpful to know something about the operations of the Band before proceeding to the facts. During Ms. Schuyler's tenure, the Executive Administrator was the most senior position in the Band administration. This position has now been replaced by a Director of Operations, possibly because of the issues that arose in the present case. [6] Randy Phillips worked as a policy analyst for the Oneida Nation and was later elected as Chief. He testified that the power to make decisions in the Band rests generally with Council. Council meets approximately once a week, in the evening. Ideally, decisions are made by consensus. When that fails, a vote is held and the majority decides the motion. The Executive Administrator may raise issues at the Council but does not participate directly, other than to advise Council. [7] Mr. Phillips testified that Ms. Schulyer did not have a good relationship with Council. He was kind enough to say that some of this was a reflection of the difficulties inherent in the position. Council tended to blame the Executive Administrator when its policies were not being implemented. A. Performance review: July 2000 [8] Ms. Schuyler was hired by the Band Council as the Executive Administrator in June, 1998. She proposed a management contract, which Council declined. She was given a standard Council contract in July, which included a six month period of probation. [9] Chief Harry Doxtator was Chief of the Oneida for approximately twelve years and has served as the Grand Chief of the Association of Iroquois and Allied Indians. He worked with Ms. Schuyler for four or five years and was the head of the probationary committee. [10] There were problems from the start. Chief Doxtator testified that there was a questionnaire given to staff. There was also an interview scheduled with Ms. Schuyler, which she called off, apparently on the basis that she was concerned with the use of the questionnaire. She wanted to see the questionnaires. [11] It seems clear that the committee felt that Ms. Schuyler was a poor manager. She followed unusual management practices and sometimes failed to follow proper procedures. The process quickly became adversarial. I accept Chief Doxtator's testimony that she said it was going to cost them a lot of money if they wanted to get rid of her. [12] Ms. Schuyler, for her part, complained that it took three years to complete the probationary review. There was a lot of haggling. At one point, the evaluation committee wrote her a letter, asking her to address a number of concerns. She sent them an extensive reply on May 13, 1999. [13] It was not until June 20, 2000, however, that the committee conducted the review process. Ms. Schuyler was ranked as average or below average on all of the performance factors in the personal evaluation. It contained outstanding scores for initiative, assertiveness and confidence. The truth, however, is that the evaluation committee expressed concerns about her performance. [14] Ms. Schuyler refused to sign the evaluation. In a written response, on June 26, 2000, she took the position that the failure of the Council to separate the roles of Council and the administration undermined the authority and credibility of the Executive Administrator. It seems characteristic that she did not acknowledge the difficulties she had experienced in maintaining her working relations with other people. [15] In spite of the disagreements, a number of recommendations came out of the evaluation report. One was that an ad hoc grievance committee be established to deal with any issues relating to the Administrative Executor. One was that Ms. Schuyler obtain her grade twelve equivalency. [16] The report went to Council on July 25, 2000. It was discussed by Council in the early morning hours, after one of the regular meetings. Ms. Schuyler thought this was unfair. Chief Doxtator did not agree. The matter was pressing and there was no other time to deal with it. [17] The Councilors concentrated on the things that the program managers had said. The Committee had sent questionnaires to the Chief, Council and staff. She says that she wasn't able to respond properly because she didn't have the questionnaires. They said that the questionnaires were destroyed. [18] Council ultimately accepted the report and requested a six month follow up. This was scheduled but never occurred. Ms. Schuyler felt that the process was one-sided and incomplete. She says that she was forced to agree to things under duress as a result of the hour and the emotional pressure placed upon her. [19] Ms. Schuyler felt that she was being treated differently because she had lived off the reserve for 35 years. The draft evaluation stated that she needed to reintegrate herself into the community. She asked them to remove this reference from the final evaluation. She didn't feel any need to be reintegrated into the community. It is notable that her position changed in cross-examination. [20] It seems clear that the bulk of the problem lay with the twenty five program managers who reported to the Executive Administrator. Ms. Schuyler's relations with these managers were strained, to say the least. There was a controversial email that made the rounds on November 28, 2000 with a copy to Ms. Schulyer complaining about her management style. The significance of this email is simply that there was dissatisfaction among the staff. [21] Ms. Schuyler says the problem was with Council. Her relationship with Council was poor and continued to worsen over the entire period of the complaints. The lines of authority weren't clear and the program managers continually went to Council behind her back. At one point, she stated that the staff probably didn't like her because she had disciplined them. [22] Randy Phillips took the side of the program managers and remembers an intervention from the Canadian Human Rights Commission or Labour Board. There was an attempt to mediate the dispute on January 27, 2001. It appears that fifteen to twenty people participated. This included Ms. Schuyler, a number of program managers, the Chief and two Council members. [23] It all sounds very trying. Ms. Schuyler was on the defensive and discussed a possible human rights complaint with one of the mediators. There was an agreement drawn up at the end of the mediation. Only three of the program managers signed it: the rest refused. They were apparently unhappy with the process. The review of Ms. Schuyler's job performance continued. [24] There was a meeting between the evaluation committee and Ms. Schulyer, on March 22, 2001, to do the follow up. She protested. The committee asked her to put her concerns in writing, which she did by means of a written memorandum, dated April 25, 2001. There was no response. B. Cancer: July 2001 [25] Ms. Schuyler became sick in July 2001. She was hospitalized for about eight days, with a bowel blockage. She couldn't keep food down and was getting very weak. She was fed intravenously. Eventually, the blockage cleared itself. After she left the hospital, Ms. Schuyler took sick leave, and then a vacation. She was off work until the beginning of September. [26] Ms. Schuyler testified that she was being treated for peptic ulcers at this time and was losing weight. I allowed a letter from Dr. McDonough into evidence but excluded his case notes. The doctor has apparently moved to Ireland and is no longer available. The Tribunal can relax the rules of evidence in the interests of determining the truth. [27] The Respondent has not disputed the rough outlines of the situation described in the letter. The letter states that Ms. Schulyer was under stress. The details of Ms. Schuyler's medical record are not in issue. It is apparent that the deteriorating situation at work was affecting her physically. She was tired and couldn't concentrate. [28] Ms. Schuyler went through a number of medical tests between September and November. In November, her doctor ordered her to take two weeks off work. This was followed by another note, again to stay off work. She had a colonoscopy on December 21st. [29] Ms. Schuyler's doctors discovered that she had cancer of the colon. There were more tests and she went into surgery at the beginning of February. She was in the hospital for eight days and part of her colon was removed. She was at home, recovering, until May, 2002, and took chemotherapy up until September. C. Part-time: May 6, 2002 [30] In her final submissions, Ms. Schuyler states that she was determined to get back to work. After having been through a life-threatening experience, I wanted an opportunity to return to normal life. I thought returning to work part-time would be the beginning of that. I knew I could not fulfill the entire role of Executive Administrator on a part-time schedule but felt I still had valuable contributions to make. In April, Dr. McDonough agreed that Ms. Schuyler could return to half-time work. [31] Ms. Schuyler then contacted Holly Elijiah, the Acting Executive Administrator, who must have spoken to Chief Doxtator. The Chief phoned Ms. Schuyler and told her that Council was concerned about her returning to work. The evidence suggests that they felt that she wouldn't be able to deal with the pressure. But I agree with Ms. Schuyler: they didn't want her back. [32] Chief Doxtator informed Ms. Schuyler that the human resources committee would have to review the situation. She would have to meet with them. Ms. Schuyler felt that they were simply trying to stop her from coming back. There was nevertheless a band policy. An employee had to meet with a human resources committee before returning to work from a long absence. [33] There was some antagonism on both sides. On May 6th, Ms. Schuyler apparently told Chief Doxtator that her cancer was a disability and the Band would have to accommodate her under the Canadian Human Rights Act. Chief Doxtator responded that they needed a medical note. [34] Ms. Schuyler was feeling mistrustful. She wrote a letter to Chief Doxtator two days later, expressing her disappointment with the fact that they hadn't given her part-time work. She delivered the letter to his office the next day. She also met with the Human Resources Committee. [35] The meeting was on the litigious side. The committee raised seven points, ranging from medical documentation to the hours that she wanted to work. They also indicated that they felt obliged to respect the contracts that had been entered into while she was away. They apparently felt that they were already full staffed. [36] The committee made it clear that her position had been given to someone else. There was a real reluctance to bring her back. The meeting lasted an hour and a half. The committee wanted her to take a lesser position. They agreed to draw up a position for her, but it wouldn't be the same position or the same salary. She felt they were delivering a message from Council. They didn't want her back. [37] Ms. Schuyler broke down in tears on the stand. The Committee gave her an awful feeling. They acted as if cancer was catching or something. She expected more compassion. It didn't matter to them if she was feeling better or not. It didn't matter to them whether she was still alive or not. Ms. Schuyler said that the Committee felt that she was mentally incapable of handling any kind of workload. [38] It was a complicated situation. In spite of this, I am satisfied that, behind the indifference, Council and the staff had some genuine concerns for Ms. Schuyler's well-being. Ms. Elijah testified that the thought on the reserve was that she was going to die. This does not mean that they wanted to accommodate her. [39] The Human Resources Committee told Ms. Schuyler that they would provide a written recommendation to Council. Charlie Cornelius said that they would show it to her first. She received the report on May 14th. She discussed it with Lois Cornelius, a member of the Committee, who supplied it to her. She told Ms. Cornelius that she wasn't happy with the statement in the report saying that she would have no authority. [40] Ms. Schuyler obtained a note from her oncologist on May 15th, and met with the Chief. The note suggested that she was in the best position to determine what an appropriate work-load would be, and she advised him that she wanted to be consulted, in determining her duties. This would appear to be a natural part of any reasonable process of accommodation. [41] The Report went to Band Council on June 12, which agreed to employ her. She would be supervised by Holly Elijiah, the Acting Executive Administrator. Ms. Elijah had been Ms. Schuyler's assistant when Ms. Schuyler was first hired. Council took the position, as did Chief Doxtator, that the Executive Administrator position could not be staffed on a part-time basis. Nor could it be filled by two people. [42] On the same day, Ms. Elijah replied on behalf of the Band, sending Ms. Schuyler an employment agreement, describing a part-time position with modified duties. The position that was offered to Ms. Schuyler was Special Projects Administrator. This position did not enjoy the same responsibilities or authority over staff. The new contract for the position also stated that there was a three month probationary period. [43] The agreement stated that Ms. Schuyler was to report to the Acting Executive Administrator, Chief and Council, and Department Heads. The Department Heads were Program Managers. This was a demotion of sorts, since they had been under her supervision. It is evident that she wanted to retain some element of her authority. [44] Ms. Schuyler testified that she would have been happy to help Ms. Elijiah on a part-time basis, but she wanted some say in deciding what work she would be given. The most troubling aspect of the offer was that there was a three month term of probation. I think Ms. Schuyler is within her rights in saying that this was unacceptable. She was worried, moreover, that this would put them in a position to let her go. [45] Ms. Schuyler went to a lawyer, Adrian Cameron. After discussing the offer of part-time employment with him, she decided to reject it. She wasn't prepared to go back, on the terms that they were offering. She thought it was better to walk away until she could return full-time. She indicated to the Insurance Company that she would not be going back to work until her chemotherapy was completed. [46] Ms. Elijah felt that the Band followed the personnel policy, in good faith. Chief Doxtator seemed to back her up. They took the position that Ms. Schuyler simply refused to participate in the process. There may be some defensiveness in this: I think the matter is a good deal more nuanced and the Band was not particularly interested in accommodating her. [47] Ms. Schuyler's lawyer advised Council on June 19, 2002 that she was unable to return to work and would be receiving full-time disability. His letter referred to multiple breaches of the Canadian Human Rights Act and stated that she would be asking for accommodation when she returned. [48] At the beginning of July, when a new Band Council was elected, Ms. Schuyler gave Ms. Elijiah a chapter from a book, When Life Becomes Precious: A Guide for Loved Ones and Friends of Cancer Patients, by Elise NeeDell Babcock. It contains guidelines for employers, in dealing with situations where an employee has cancer. This was apparently distributed to the new council, since Rolanda Elijiah and Luke Nicholas, two of the new councilors, came by her home to speak to her about it. [49] The first complaint with the Canadian Human Rights Commission was filed the following month. Ms. Schuyler also filed a complaint with Labour Canada on August 26, 2002, stating that she was constructively dismissed. I gather that the later complaint was later withdrawn. D. Return to work: October 15, 2002 [50] Ms. Schuyler received a full-time disability allowance until October 15, 2002. She received Employment Insurance from the end of January to May 2002. She received welfare for one month, during June of the same year. She eventually finished her chemotherapy and received traditional counseling. [51] Ms. Schuyler did a lot of soul searching. She says that she forgave everyone for the problems in the past and let go of her bitterness. She decided to let bygones be bygones. She maintains that she returned to full-time work in October, 2002 with good feelings. [52] This was transitory. Ms. Schuyler had difficulties with the new Council and was terminated eleven months later. She felt that her problems lay with the Chief. She said it was as if he didn't want to be close to her, physically. There was a lack of communication. She complained of nepotism and explained: I wasn't related to him. [53] On October 15th, Ms. Schuyler met with Chief Doxtator. He wanted a medical note, signed by her oncologist. She felt that she was already running into road-blocks. Ms. Schuyler nevertheless drove to the hospital, obtained a note, and returned to the Band office. She couldn't find Chief Doxtator and felt that he was ignoring her. [54] Ms. Schuyler drafted a motion and asked the Council Recorder to put it on the agenda for the next meeting. The motion stated that Council accepted the medical documentation that she provided and recognized that she was medically fit to return to her position as Executive Administrator. It also directed all employees to co-operate in her return to work. She says that Council removed a paragraph welcoming her back. [55] The meeting was uncomfortable. Ms. Schuyler testified that there was a strange feeling in the room. People shuffled papers and looked away. Everybody seemed to look at the floor. The motion was nevertheless passed. She was informed later that Holly Elijiah would keep her position as Acting Executive Administrator for the rest of the year. So there were two Executive Administrators. [56] This was never properly explained, and seems to run against the position that the Band had taken with respect to part-time work. Ms. Schuyler feels that they kept Ms. Elijiah in the position because they had no confidence in her ability to carry out her duties. I think that there was probably a measure of truth in her perceptions. She nevertheless accepted the situation. She didn't want to create any animosity. [57] Chief Doxtator took a different view than Ms. Schuyler. He testified that the relationship between Council and Ms. Schuyler when she returned was welcome back. This evaporated over time, but only because Council became increasingly aware that Ms. Schuyler lacked the personal skills to deal with the interpersonal aspects of her job. [58] Ms. Schuyler spent most of November doing the performance evaluations of the program managers. They were self-evaluations. She didn't have much contact with the Chief. Ms. Elijiah was primarily occupied with catching up on the Council minutes. There was a staff retreat in early November. They discussed the need to separate the political and administrative functions of the band. [59] The old animosities were still there, however. Somewhere along the way, she was asked to withdraw the complaint. At some point, probably at the beginning of 2003, Ms. Schuyler says that someone put a post-it note reading Enter at your own risk on her office door. The level of mistrust in the office was high enough that Ms. Elijiah testified that the note was in Ms. Schuyler's handwriting. [60] Ms. Schuyler felt that people did not want her back. She attributed it to the fact that she had filed the human rights complaint in July, 2001. She said that Council does not like being sued. She had seen their attitude to litigants in other cases. They didn't like the fact that anyone would challenge them. No one said this, but the feeling was there. [61] There were increasing problems. There was a special meeting of Council in December, 2002, to separate the political and administrative functions of the Band. This included separating the political staff from the administration. It appears that there was a struggle with Ms. Schuyler over the issue, since it would remove some of Ms. Schuyler's staff from her supervision. [62] There was a Council meeting on January 7th, 2003, which dealt with personnel problems at the healing lodge. Ms. Schuyler thought that the issue had been resolved in 2001. Chief Doxtator did not know why it took so long for the issue to come to the attention of Council. The Council issued Ms. Schuyler a verbal warning to her for the way she dealt with the issue. She received a letter two weeks later. [63] It is obvious that there were deeper problems. Some of it was personality; but there was more to it than this. The Respondent takes the position that Ms. Schuyler wasn't capable of doing her job. Ms. Schuyler felt that they were looking for excuses to reprimand her. She was blamed for everything. She was a non-person. It was the beginning of beating her down. (i) The occupation: March 7, 2003 [64] Then there was the occupation. The provincial police had obtained permission to carry out a homicide investigation on the reserve. They arrived on March 7, 2003, with a dozen or more police officers. This upset many people. There was a flurry of phone calls to the administration. The traditional chief at the administration building found it impossible to deal with all of the calls and left the building in exasperation. [65] It was territorial. People were angry that there were OPP vehicles on the reserve. Chief Doxtator testified that four or five members of the Band eventually came into the Administration Building and wanted everyone to go home. They suggested that staff needed time off. One of them had a six foot cane, two inches thick. He was banging it on the floor. [66] Holly Elijiah had a similar recollection. She testified that four men brought in a heavy staff of some sort, possibly a condolence cane, and started pounding it on the floor. They had been drinking; they were yelling; and they threatened the staff and told them to leave the administration building. They wanted the police off the reserve. [67] Chief Doxtator refused to leave. Ms. Elijah felt that this was dangerous. There were discussions and a decision was made to vacate the building. Most of the staff were gone by 4:30. Chief Doxtator did a round of the offices, to see that everyone had left. He was the last person in the building. He wanted to close it. The men had come back, however, and announced that they were staying in the building. [68] The crisis escalated and eventually dozens of protesters occupied the main administration office. They then took over the entire plant. This was on a Friday. It took until Tuesday or Wednesday to resolve the situation. There were about one hundred and seventy five employees locked out. Ms. Elijiah testified that the staff was traumatized. They felt physically threatened. [69] Ms. Elijah still feels traumatized. She feels that the problem was that no one was in charge and blames this on Ms. Schuyler, who did not come into the office that day. Ms. Elijah is suspicious of this: she said that Ms. Schuyler had never told anyone that she wouldn't be there. The assistant was also away. [70] After the occupation, there were many meetings to deal with the concerns of staff. Ms. Elijiah testified that Ms. Schuyler was unsympathetic, even scornful. She called them victims and said they should all simply go back to work. Ms. Elijah says that this was the beginning of the end. The staff resented Ms. Schuyler for failing to support or protect them. [71] There was a staff meeting in Council chambers, some days after the occupation. Ms. Schulyer and Mr. Phillips spoke in private before the meeting. Mr. Phillips stated that Ms. Schulyer said people were acting like victims. There are two versions of what happened at the meeting. Mr. Phillips said that Ms. Schuyler then repeated these remarks in the meeting. This upset some of the individuals who were there. Ms. Schuyler said that Mr. Phillips made the remark. [72] There was some personal counseling offered to employees after the occupation. There was also a traditional healing circle, though Ms. Elijah feels that it was nothing more than an opportunity to vent. This still rankles: she didn't want to go and spill her guts out in front of everyone. She wanted a plan in place, to deal with the kind of situation that led to the occupation. [73] There was also an issue concerning the staff who participated in the occupation. Ms. Elijah wanted them disciplined. Ms. Schuyler felt that it was a more complex situation and wanted Council to deal with it. The evidence is unclear. One witness stated that Council had to instruct Ms. Schuyler to deal with the matter. [74] Ms. Schuyler, on the other hand, testified that Council dealt with the disciplinary issue without consulting her. This led some of her staff to believe that she was part of the occupation. In any event, the occupation and the recriminations that followed led to a further deterioration in Ms. Schuyler's working relationships. Ms. Schuyler felt that members of her staff had gone to Council behind her back. E. Termination [75] It is hard to disentangle what was happening from what Ms. Schuyler perceived, but the situation was deteriorating on both sides. There was something in the background that no one was really saying. She felt invisible. Her recommendations were not taken seriously. People would smile to her face, but then something else would come up. [76] Ms. Schuyler is convinced that Council didn't want her there because she filed the human rights complaint. They were looking for ways to get rid of her. The staff sensed that Council didn't trust her. They lost confidence in her as a result. There were allegations that she didn't support them. [77] Ms. Schuyler listed thirty incidents of retaliatory conduct. There was, for example, a conflict of interest with one of the managers. She had difficulty dealing with it. Her word didn't carry any authority any more. There is a measure of truth in all this, but it is tempered by the fact that the Chief and Council had real issues with Ms. Schuyler's job performance. [78] There was a Council meeting on May 6, 2003, to deal with the plan to separate the political and administrative functions of the Band. The first step in that plan, taken at the same meeting, was to ask the Executive Administrator, i.e. Ms. Schuyler, to attend Council meetings on the first and third Tuesday of the month. Ms. Schuyler says that this was merely to keep her out of meetings. [79] Ms. Schuyler felt that she was laughed at when she asked questions at Council. She was called insubordinate. Ms. Schuyler felt that it was part of the Executive Administrator's responsibility to attend meetings. Council took the position that it had the authority to change her responsibilities, however, and were within their rights to ask her not to attend meetings. [80] Randy Phillips testified that Ms. Schuyler was asked to report only to the last meeting of the month. This led to a flare-up with a councilor, Faye Antone, who was laughing. Ms. Schuyler asked her not to laugh at her. Ms. Antone replied by telling her that the Council was her employer and that she was to do as she was told. There was also an incident with Ms. Elijah. [81] Ms. Schuyler complained that Band Council removed Holly Elijiah and Randy Phillips from her supervision. Mr. Phillips said that this was part of an ongoing process. As a policy analyst, he had proposed a policy secretariat, which would report directly to the Chief and Council. This was on the basis that its responsibilities were on the political side of the political/administrative divide and was not related to the delivery of programs and services. [82] It is hard to keep the lines of the narrative clear. There were battles everywhere. There was an issue, for example, between Ms. Schuyler and Mr. Stacey Phillips, a staff member and Councilor. There were loud arguments between the two of them. Mr. Phillips did not accept Ms. Schuyler's authority as his supervisor and kept going over her head, to Council. [83] Ms. Schuyler maintains that Council continued to deal with administrative matters, in spite of all the talk about separating the functions of the Band. Some of the problem was undoubtedly that it was open to staff to sit on Council, which made their supervision extremely problematic. Issues between the Executive Administrator and individual staff members must have affected Council business. [84] Ms. Schuyler wanted to change the personnel policy to prevent councilors from being employed by the Band. The Respondent says that section 5.8 of the Election Code prevented this. She says that the Election Code has not been passed in a referendum. The provisions of the Indian Act accordingly apply. [85] There is a draft Customs Election Code, which was periodically discussed by Council. Holly Elijah said that the Band has been trying to finalize the Code for twelve years. One provision, 5.8, says that any employees who are elected Chief or Councilors must leave the Band's employment. The Election Code has not been passed, however, and at the time in question, staff members had a right to run for council. [86] The relations between many of the different individuals in the story were edged with personal rancor. It is clear from Chief Doxtator's testimony that there was a rivalry of sorts between Randy Phillips and Ms. Schuyler. Council was not a part of this. Ms. Schuyler alleges that Mr. Phillips gave funding information directly to the program managers, bypassing her office. They seem to have been competing for the loyalties of the managers. [87] There appear to have been similar issues between Ms. Schuyler and Ms. Elijiah. This was evident in the tone of voice and body language used by Ms. Elijah on the witness stand. At one point in the cross-examination, she refused to look at Ms. Schuyler and referred to her in the third person. [88] In any event, it was all very personal. Ms. Schuyler has complained, for example, that Randy Phillips had been allowed to do some of his work at home for a number of weeks, so that he could care for his father. Ms. Schuyler said the Band failed to accommodate her in the same way. [89] The level of detail is numbing. There was an issue between Ms. Schuyler and a councilor with respect to funding for the Casino-Rama. There were disputes concerning honoraria for attending Council meetings, the awarding of jobs, and a variety of other issues. [90] Everything was entangled. Ms. Schuyler's daughter was the employment and training administrator. Council understandably saw this as a conflict of interest and did not want her reporting to her mother. She was accordingly placed under the supervision of Mr. Phillips, who was now under Council's supervision rather Ms. Schuyler's. [91] There was a dispute regarding the disclosure of letters complaining about Verna Brown. There were issues between Cyndi White, the Human Resource Coordinator, and Ms. Schuyler. They didn't trust each other. Ms. White thought that Ms. Schuyler, her supervisor, was editing her reports to counsel. So she went over Ms. Schuyler's head and spoke directly to Council. [92] Matters continued to get worse. Ms. Schuyler wasn't kept informed of what was happening in Council. The minute book was no longer available to her. The Council Recorder--Ms. Elijiah, who had also been removed from Ms. Schuyler's supervision--would not let her see it. Ms. Elijah said that she was following the instructions of Council. The in camera minutes were never to leave the building. [93] Chief Doxtator does not recall any disputes about the in camera minutes book. He did not see the direction that Ms. Schuyler only appear at Council meetings to provide her report as an attempt to exclude her. She would still be required to appear at meetings where issues arose that needed her input. Nor did he see the change in the reporting requirements of Holly Elijah and Randy Phillips as an attempt to undermine her authority. [94] Ms. Schuyler decided to go to the meetings as a member of the community. This strategy didn't go over well. There was a general break-down in her relations with Council. In July, she complained about the situation in her monthly report. She had discussed the situation with her lawyer and advised Council that its conduct was tantamount to constructive dismissal. Council disagreed. [95] The evidence is that the politics were intense. Everyone seems to agree, however, that the continuing conflicts and ongoing litigation had poisoned what was left of the relationship between Ms. Schuyler and Band Council. The evidence does not support the allegation that this was done in retribution for filing the complaint. [96] There was an elder sit-in in August, 2003, at the Health Department office across the road from the administration office. The person who was the long-term care coordinator was suspended. As a result, a number of senior citizens and others occupied the building. Ms. Schuyler did not handle the situation well. The police were called. [97] Ms. Schuyler responded with a letter from her lawyer to Mr. Peters, counsel for the Band, on August 21, 2003. The letter alleged that that the Band's treatment of the Complainant was retaliation for the human rights complaint. [98] There was some issue as to whether Ms. Schuyler was getting her work done, as a result of the issue over Council meetings. The matter was serious enough that the Chief wrote a letter to Ms. Schuyler on behalf of Council on July 9, 2003 directing her that she was to attend Council as required. The letter gave her a second warning. [99] There was a meeting of Council on August 28, 2003 to deal with Ms. Schuyler's performance. There was a motion to dismiss her from the position of Executive Administrator. The minutes list eleven items of misconduct. The language is strong. The first two items refer to acts of insolence. The next item refers to acts of insubordination. There is another reference to her breach of her duty of loyalty and good faith to Council, and references to her manner with staff. [100] Then there were substantive complaints, the most serious being an allegation that Ms. Schuyler failed to implement over 100 items designated to her by Council over the previous five years. There is a separate list of forty-one outstanding Administrative Action Items from 2002 to 2003, thirty-eight of which required action from the Executive Administrator that was provided to Council members before the meeting. The requests range from the implementation of the mosquito program to a proposal to purchase a new fire truck, to the provision of committee lists. [101] Chief Doxtator chaired the meeting on August 28th. He feels that the concerns expressed at the meeting were valid. They reflect the rather desperate situation that existed at that time. Ms. Schuyler was argumentative and contrary, in her dealings with Council. There was none of the trust that was necessary to maintain a proper working relationship. There was insubordination. There was a failure of co-operation. There were problems with staff morale. [102] Chief Doxtator agreed that there was a poisonous scenario at the office. He attributed this to Ms. Schuyler, however. There was no attempt to force her to quit. There were a number of confrontations at Council table but he did not feel that Council treated her badly. Council had never received so many complaints about an Executive Administrator. There was no discussion of Ms. Schulyer's illness or the complaint to the human rights Commission. [103] The minutes of the meeting were not signed by Council. This appears to be inadvertence. Ms. Elijah, who took the minutes, says the language used in the minutes was appropriate. It was all about Ms. Schuyler's attitude. She testified that the dismissal had nothing to do with Ms. Schuyler's illness. Mr. Phillips took the same position. [104] On September 4th, after the labour day weekend, Ms. Schuyler returned to work. She was given a letter from Chief Doxtator, stating that she was dismissed. The letter cited a number of reasons for her dismissal. The Chief said it was not up for discussion and she was escorted out the door. This brought Ms. Schuyler's troubled relationship with Council to an end. [105] The letter of dismissal is dated September 2, 2003. It is very stern and alleges eleven forms of misconduct. This includes continued acts of insolence and breaches of her duty of loyalty and good faith. Ms. Schulyer rejects all of these allegations. The letter offered her seven months severance pay. She was required to sign a release, however, which stated that any complaints that she had filed under the Canadian Human Rights Act or the Canada Labour Code were frivolous, vexatious, and an abuse of process. [106] It is a sad story. Ms. Schuyler's lawyer suggested that she accept the settlement. She refused. The issue was not the money. She felt the allegations were unfair. She had been `silently' discriminated against. She refused to sign the release. Afterwards, she felt isolated. Some of the staff and community members wouldn't talk to her. [107] In the fall of 2003, Ms. Schuyler filed another complaint under the Canada Labour Code. The second human rights complaint, alleging retaliation, was filed on January 20, 2004. III. LEGAL ISSUES A. Retaliation [108] The second complaint was filed under section 14.1 of the Canadian Human Rights Act, which states: 14.1 It is a discriminatory practice for a person against whom a complaint has been filed under Part III, or any person acting on their behalf, to retaliate or threaten retaliation against the individual who filed the complaint or the alleged victim. There is a legal issue with respect to the requirements of retaliation. [109] The case law goes two ways. I prefer the position adopted by Member Deschamps in Virk v. Bell Canada (Ontario, 2005 CHRT 2 (2005/01/20), at para. 156: [156] Retaliation implies some form of willful conduct meant to harm or hurt the person who filed a human rights complaint for having filed the complaint. This view departs in part from those expressed in previous decisions of this Tribunal on the issue of retaliation (Wong v. Royal Bank of Canada, [2001] CHRT 11; Bressette v. Kettle and Stony Point First Nation Band Council, 2004 CHRT 40). [157] In Wong and Bressette, the views expressed are to the effect that a complainant does not have to prove an intention to retaliate and that if a complainant reasonably perceived the impugned conduct by the respondent to be in retaliation to the human rights complaint, this could amount to retaliation quite apart from any proven intention of the respondent. (Italics added) It might be possible to find some support for the latter view in the fact that discrimination is not an intentional wrong. [110] With all respect to other views, I think M. Deschamps' interpretation is the right one: 158] The burden of proving retaliation rests with the complainant who must prove, on a balance of probabilities, that the person against whom he or she alleges retaliation knew of the existence of the complaint, that the person acted in an inopportune way and that the person's misbehaviour was motivated by the filing of a human rights complaint by the complainant. I would add that the word retaliation must be given its ordinary meaning. One has to worry about the credibility of a process that departs too far from the understanding of ordinary people. [111] Although M. Deschamps goes on to find that retaliation is a form of discrimination, it is a particular species, with its own requirements. My only observation is that the rules of statutory construction must be followed, here as elsewhere. The section refers to someone who is retaliating in the ordinary sense of the word. The definition in the Webster's-Merriam online dictionary emphasizes the notion of paying back. I think this is enough for the purposes of the present case. IV. ANALYSIS A. THE FIRST COMPLAINT [112] The first issue is whether the Respondent discriminated against Ms. Schuyler in May of 2002, by failing to accommodate her? There is no need to enter into an analysis of the prima facie case, which is easily made out. (i) Whether Ms. Schuyler failed to facilitate the process [113] The Respondent raises two defenses. The first is merely that it acted fairly and responsibly, and in keeping with the law. [114] Ms. Schuyler says that she was only looking to come back on a half-time basis. She was willing to take on individual projects and had no desire to change the interim administrative arrangements. The band says that they offered her this. They say that Ms. Schuyler then stopped communicating. [115] Mr. Peters says that the letter from Oneida on June 12, 2002 meets Ms. Schuyler's conditions. It gives her a flexible schedule. It provides a job description `for her perusal'. This was a first step. There was room for further negotiation. Mr. Peters relied on the decision in Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970, where the Supreme Court stated that the complainant has a duty to participate in the search for accommodation and facilitate the process. The process of accommodation is a multi-party inquiry. [116] The Respondent says that Ms. Schuyler had an obligation to respond to the letter from the Band. Instead of doing this, she retained a lawyer, who advised the Band, in writing, that she was fully disabled. I think this is too simplistic: in my view, Ms. Schuyler felt rebuffed, and reasonably so. The Respondent's rendition of the facts leaves out the most important factor in the process, which was the clear message that the Band sent: they didn't want Ms. Schuyler back. [117] It is simply wrong to put the blame for the failed negotiations on Ms. Schuyler. Legally, the primary duty was on the Respondent, to try and find a way to bring her back. The negotiations with the personnel committee and the proposed contract failed to honor this fact. The contract did not recognize Ms. Schuyler's seniority and the probationary clause was completely unwarranted. Aside from the natural vulnerabilities that anyone would feel, after such a serious medical intervention, the process was disrespectful to someone in such a senior position. [118] I agree with Ms. Schuyler: the Band did not really want her back, and communicated that to her, in a variety of ways. An employer who sincerely wanted to accommodate her would have gone much further, in trying to work out some solution that was satisfactory to both sides. I realize that it was a difficult situation for both sides: Ms. Schuyler was suspicious and adversarial, and wanted things her way. I am nevertheless satisfied that the Band failed in its duty to accommodate her. [119] Here, as elsewhere, the employment dispute was uppermost. It is abundantly clear that the Band was unhappy with Ms. Schuyler's performance as the Executive Administrator. The performance review had been interrupted and was never satisfactorily concluded. Rather than deal with these aspects of the matter-fairly, responsibly and openly-the Respondent was content to let her go on disability. It was an easy way out of the situation. (ii) Estoppel [120] Mr. Peters makes another argument, however. He says that Ms. Schuyler was totally disabled. The Respondent accordingly had no obligation to accommodate her. I suppose it is a form of estoppel by conduct. Ms. Schuyler received full-time disability benefits. Mr. Peters says that she cannot accept these payments and claim that she was partially disabled and capable of coming back on a part-time basis. [121] There is no need to go into the technicalities of the matter. Ms. Schuyler only applied for full-time disability after the negotiations had broken down. By that point, Ms. Schuyler was alienated and suspicious, and didn't have the heart to pursue any further discussions. She had her health to worry about, and the psychological stress of dealing with the Band was too much. [122] I do not want to overstate the case, and I accept that some of the individuals involved in the process felt genuine concern for Ms. Schuyler's well-being. This was outweighed, however, by indifference and ill-will. The reality is that the actions of the Band contributed to the set of circumstances that left Ms. Schuyler totally disabled. It would be wrong to let the Respondent use this fact against her, in order to escape its obligations. (iii) Conclusions [123] I agree with Mr. Peters' submission that there are real limits on the duty to accommodate: it is not the duty of the Respondent, he submits, to help Ms. Schuyler in her recovery from cancer. This only goes so far, however, and in most cases, at least, the process of accommodation and the recovery process go hand in hand. I am not prepared to say that an employer has a legal obligation to be considerate, but it has an obligation to be fair and reasonable and, in many cases, I suspect that this amounts to the same thing. [124] There is a practical side to this: I would also suggest that a certain degree of empathy is an indispensable part of the process of accommodation. The upshot of this is that a Respondent is obliged to take the complainant's circumstances and condition into account in searching for an appropriate form of accommodation. An employer who adopts an adversarial approach to a person who has gone through a major medical or psychological crisis, and sends a clear message that the person is not welcome back, is probably in breach of its duty to accommodate people with disabilities. [125] The situation that presented itself in the present case was difficult for both sides, who came out of the interrupted performance review in medias res and had not sorted out their affairs. The Respondent was nevertheless obliged to sincerely enter the process of accommodation and search earnestly for an arrangement that would meet her needs. The Respondent was not negotiating in full good faith. This constitutes discrimination and is a breach of the Canadian Human Rights Act. The first complaint is substantiated. B. THE SECOND COMPLAINT [126] The second issue is whether the Respondent retaliated? I am not sure what to say about the prima facie case in this context, since I have discussed it at so much length elsewhere. Was there a prima facie case of retaliation? Perhaps. Would this shift the burden of proof to the Respondent? Decidedly not. The only question on the evidence is accordingly whether the complainant has proven on a balance of probabilities that she was retaliated against? [127] Ms. Schuyler made some thirty allegations, most of which follow the long series of events that culminated in the termination. Ms. Schuyler apparently attributes all of these events, and the termination, to the fact that she filed the original complaint. It is true that she retreated somewhat during the course of her submissions, and took the position that it was a factor in the decision. The result is the same: if it hadn't been for the human rights complaint, she says, she would have been able to sit down with the Chief and Council, and work out the other problems. [128] I find this view of the situation rather naive. Ms. Schuyler has been denying the obvious. There was a break-down in the relationship between Ms. Schuyler and the Band Council from the get-go, in the words of Mr. Peters. The first evaluation was symptomatic. The band's concerns were never properly addressed. Things were headed in a bad way when Ms. Schuyler discovered that she had cancer and were only going to get worse. The relationship continued to deteriorate when she returned. [129] The testimony of Chief Doxtator, whose evidence I accept, is enough to establish that the employment issues between the two parties were real. Those issues have been raised elsewhere and need to be separated from the allegations under the Canadian Human Rights Act. There was a larger set of circumstances, which was full of rancour, and there is very little to suggest that the human rights complaint had much to do with it. There is no real evidence of retaliation, outside of Ms. Schuyler's testimony. [130] The first allegation is that Ms. Schuyler didn't get her full authority back when she returned as the Executive Administrator. This is a reference to the fact that she shared the job with Holly Elijiah for two months. The Band Council has a reasonable response: it says that Ms. Elijiah was left in the position for her benefit and to provide a proper transition. I understand Ms. Schuyler's suspicions, but there is nothing to link this to the original complaint. [131] The second allegation had to do with the disciplinary action with respect to the situation at the healing lodge. This matter was left over from Ms. Schuyler's original term as Executive Administrator. It is true that Ms. Schuyler had an increasingly antagonistic relationship with Council, which was not improved by the complaint. But there is nothing in these kinds of specific instances that can be linked to the complaint. [132] There is little point in going through the thirty allegations in the complaint of retaliation, all of which reveal a deeply troubled relationship. There was an ongoing dispute, for example, about the appropriateness of the Executive Administrator attending Council meetings. One might think it strange that Council would exclude her. But the Chief and Council had a different view: it was really that Ms. Schuyler had become obsessed with the issue, and needed to focus on her own work. [133] The only question before me is whether this constituted retaliation. Although it is difficult for an outsider to understand either the breadth or the intensity of the conflict between Ms. Schuyler and Council, I accept the evidence that Council felt that she had overstepped her bounds. If nothing else, the decision to direct Ms. Schuyler not to attend the meetings of Council was a reflection of the increasingly hostile relationship between them. They simply couldn't work together. [134] It does not really matter how much one waters down the concept of retaliation. The simple question before me on the second complaint is whether the actions that the Band had taken against Ms. Schuyler, including the termination, were some form of retaliation. The evidence indicates otherwise. The idea that Council was paying her back when it dealt with personnel issues, complaints from staff, electoral issues, the healing lodge, the events surrounding the occupation and sit-in, and a host of other matters, is simply not credible. [135] I accordingly accept the position that the Respondent has put forward in its written submissions: A breakdown in the relationship between the Complainant and the Respondent is evident through the evidence of both parties. As a result of the deteriorating relationship, the Complainant's employment was terminated for cause. And elsewhere: The Complainant was ultimately terminated from her employment for failing to meet the ongoing requirements of her position and for a clear breakdown in the relationship between the Complainant and the Respondent. I say this without deciding any of the employment issues, which are out of my reach. V. REMEDIES [136] There are a number of issues relating to remedy. Two are exceptional. A. Preliminary issues (i) Offer of settlement [137] Mr. Peters says the hearing was unnecessary. He says this because there was an offer of settlement, which in his eyes was sufficient to resolve the matter. The submission is that this should be taken into account, in determining the amount of any compensation. This presumably includes the expenses of the hearing. [138] The evidence relating to the offer is fragmentary and really covers the employment claim. It is contained in a letter dated September 2nd, 2003, which offers Ms. Schuyler eleven months severance, in addition to statutory payments, in spite of the fact that she had been terminated for cause. I know very little if anything about the circumstances of the offer and the evidence was entered into evidence essentially by mistake. Ms. Schuyler did not have a lawyer. [139] Ms. Schuyler apparently rejected the offer. Mr. Peters nevertheless argues that the attached release refers specifically to any complaints under the Canadian Human Rights Act. It accordingly constitutes an offer to settle--or includes an offer to settle--the human rights complaint. I think this is stretching. [140] There is a mechanism for settling complaints under the Canadian Human Rights Act, however, which requires the approval of the Canadian Human Rights Commission. It seems to me that it would be wrong to give effect to an attempt to settle a related employment matter, on a contractual basis, outside the Act, at least in the present circumstances, where the terms of the offer do not explicitly address the issue of discrimination. [141] It seems clear that the offer is primarily for loss of wages, rather than pain and suffering. The offer might be relevant, if Ms. Schuyler was seeking lost wages. She has relinquished that claim, however. I am also satisfied that the offer does not meet the requirements of the law of costs, which requires a very explicit communication that the offer will be relied upon, in dealing with costs. Having considered the matter, I do not think that it would be fair or appropriate to consider the offer of settlement, in dealing with the issue of remedy. (ii) The Respondent's request for costs [142] There is another exceptional matter that needs consideration: the Respondent has also asked for costs against the CHRC. The Tribunal is a statutory body, however, with the powers granted to it by statute, and it is not clear to me that I have the jurisdiction to award these costs. [143] The policy factors that come into play in the case of Complainants do not apply to Respondents. I think it is apparent in the caselaw that the Canadian Human Rights Act contemplates a process in which Complainants can pursue their complaints without fear of being penalized by costs. The purpose of the Act is to encourage complainants to come forward. [144] Although I think that it is unfair to deny a Respondent costs, in a case where the complaint is vexatious and without any merit, the power to award costs is a statutory power. I think it is generally agreed that Parliament consciously decided, in passing the Canadian Human Rights Act, not to give Respondents the right to costs. This would therefore require an amendment to the Act. [145] The situation is compounded by the fact that the CHRC did not appear before the Tribunal and has not had an opportunity to respond to the Respondent's request. Perhaps it is sufficient if I say that I do not see anything in the facts before me that would justify such an extraordinary award, even if they were available under the Act. I have no view as to whether these kinds of costs might be recovered in other ways. B. Ms. Schuyler's claims (i) Lost wages [146] Ms. Schuyler originally claimed her income from the day that she lost the job to the day that the decision was made. She also wanted some form of compensation for loss of opportunity. She has now found work with the Union of Ontario Indians, however, and abandoned these claims at the end of the hearing. (ii) Pain and Suffering [147] The major claim is for pain and suffering. I accept that Ms. Schuyler has suffered, and keenly, from the discrimination. [148] There is a personal and a social side to the pain and suffering that Ms. Schuyler experienced. The initial actions of the Respondent were inconsiderate and did not exhibit the tact and understanding that the situation required. Ms. Schuyler had gone through a life and death experience. She was also entitled to a certain deference, on the employment side, as the Chief Administrator. The experience was that much harder, given Ms. Schuyler's age and the physical tribulations that went with the cancer. [149] In her written submissions, she mentions the fact that the stress she experienced in May, 2002 had an adverse effect on the chemotherapy she was receiving. I have no doubt that it did: it clearly had an adverse effect on everything that she experienced. I also think that she is entitled to some form of compensation for her loss of dignity, which was palpable. She described the process as `peeling off her skin piece by piece', which left her feeling completely vulnerable. [150] There were the family issues that went with this. There was a real loss of social status. She discovered later that other people in the Band thought that she had done something wrong and was fired. She still feels uncomfortable going out because she thinks people look at her sideways, or walk the other way when she comes near them. Counsel for the Respondent pointed out that there is no objective evidence of this, but I do not think he meant to question Ms. Schuyler's feelings. a) Contributory conduct [151] All of this comes with two qualifications. The first is that the emotions that arose out of the employment issues are another matter. I can only estimate, in some rough manner, what she experienced as a result of the discrimination. [152] The second qualification is that there was an element of antagonism in Ms. Schuyler's conduct. There is no way out of this: she must bear some of the responsibility for the hostile relationship that developed between herself and the Band. The attitude on both sides was antagonistic. Ms. Schuyler was quick to retain a lawyer and threaten legal action. [153] There are political issues that Ms. Schuyler raised with respect to first nations. There is no doubt that she found herself caught up in a political struggle of some sort, within the Oneida Nation. The parties took a fundamentally different view of the responsibilities of the Chief Administrator and Band Council. This was exacerbated by personal enmity on both sides. These antipathies exhibited themselves, by all accounts, in indifference, political intrigue and even contempt. [154] It is hard to find dignity and understanding on either side. I am at a loss to find any real excuse for this. I was impressed by the testimony of Chief Doxtator, who I am sure understands the situation better than I do. It seems to me that the parties failed to respect the fact that our dignity rests, ultimately, on the recognition that every person has value and deserves an equal measure of esteem, whatever disagreements may arise. This idea is enshrined in the Canadian Human Rights Act. b) CHRC [155] There is another issue that arises in the context of pain and suffering. The most troubling fact is that Ms. Schuyler blamed the Canadian Human Rights Commission for much of her experience. She apparently feels betrayed by the CHRC and feels that it should not have left her to fight the litigation on her own. She testified that she had to relive her ordeal on nights and weekends, in preparing for the case. This was extremely difficult, she said. It is just as bad as going through the cancer. In many ways, I think it's worse. I survived the cancer. It will take a lot longer to survive this. [156] There is very little I can say about this aspect of the matter. I have not heard from the CHRC, and the Tribunal has no authority, as far as I am aware, to require that the CHRC appear. The more important observation, as Mr. Peters submitted, is that the Respondent cannot be held responsible for Ms. Schuyler's experience in preparing for the hearing. The Respondent was entitled to defend itself; and Ms. Schuyler acknowledged that it did so, in a difficult set of circumstances, without further injuring her dignity. c) Conclusion [157] In all the circumstances, having taken everything into consideration, Ms. Schuyler is awarded four thousand dollars for pain and suffering. This amount has been discounted, to reflect the contributory element in her conduct. (iii) Willful and reckless conduct [158] Ms. Schuyler has also asked for damages under s. 53(3) of the Canadian Human Rights Act, which allows the Tribunal to award additional compensation if the member finds that the person engaging in the discriminatory practice did so willfully and recklessly. Ms. Schuyler is asking for the maximum award of twenty thousand dollars. [159] The discrimination that occurred in the present case was regretful. It was not, however, of the magnitude that is regularly seen in many cases. The Band at least went through the exercise contemplated by the Act. It also seems to me that the claim for compensation under s. 53(3) comes primarily out of the allegation of retaliation, which has been dismissed. [160] The present case was an employment matter that boiled over, into other issues. The hostilities between the parties had an extravagant side, but I am satisfied that any egregious conduct can be ascribed to the ongoing employment dispute. This is not what the Act covers. Section 53(3) contemplates a situation in which the willful and reckless conduct is found in the discrimination, rather than a collateral dispute. (iv) Posting the decision [161] Ms. Schuyler has asked that my decision be posted in some prominent place. The Respondent says that the Tribunal has no power to order such a posting. [162] Mr. Peters submits that the Canadian Human Rights Tribunal is a creature of statute. Any authority that it enjoys in this regard must therefore be found in the Canadian Human Rights Act. The only relevant provision appears to be s. 53(2)(a), which states that the Tribunal can order that the person found to have engaged in the discriminatory practice: ... cease the discriminatory practice and take measures, in consultation with the Commission on the general purposes of the measures, to redress the practice or to prevent the same or a similar practice from occurring in future ... Mr. Peters says that there is nothing in this that gives the Tribunal the authority to order that a decision be posted in a prominent place. [163] The authority to order that the Respondent post the decision must be found, if it is found anywhere, in the first part of this provision, which states that the Tribunal may order that the Respondent cease the discriminatory practice. The question of statutory interpretation accordingly reduces itself to the question whether a direction that the decision be posted comes within the scope of an order to cease the discriminatory practice. [164] I think it does. The Canadian Human Rights Act is remedial. It deals with matters of fundamental importance and should be interpreted in a large and liberal manner. It is usually said that the purpose of the remedies provided under the Act are to make the victim whole. I think this applies as much to the emotional and psychological state of the victim, as anything else. The posting of the decision will help to alleviate some of the isolation and exclusion that Ms. Schuyler has experienced as a result of the discrimination. [165] There is another side to this: the evidence before me clearly indicates that the events surrounding Ms. Schuyler's complaint and subsequent dismissal were of public interest within the Band. I think Ms. Schuyler has every right to be concerned for her reputation and want to set the record straight. The decision has not come out entirely in her favour, but an order to post the decision will at least provide everyone with an impartial account of the issues that have arisen between Ms. Schuyler and the Band. [166] Then there is the fact that the public posting of the decision serves an educational purpose. I draw support for this conclusion from Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84, where La Forest J. stated that the Canadian Human Rights Act embodies educational objectives. I note that he then states, at para. 15, that one of the purposes of the Act is to educate people in specific workplaces: More importantly, the interpretation I have proposed makes education begin in the workplace, in the micro-democracy of the work environment, rather than in society at large. This holds true, in the immediate case, both with respect to band administration and with respect to the larger democratic process on the reserve. [167] There is also the decision of the Supreme Court in CN v. Canada (Human Rights Commission), [1987] 1 S.C.R. 1114, often cited as Action Travail des Femmes. There, Chief Justice Dickson wrote, at p. 1134, that the Canadian Human Rights Act should be interpreted in a way that gives the rights enunciated in the Act: ...their full recognition and effect. We should not search for ways and means to minimize those rights and to enfeeble their proper impact. I believe that Robichaud and Action Travail des Femmes can be read together in the immediate context. [168] It is notable that the decision in Action Travail des Femmes speaks of the impact of the rights enshrined in the Canadian Human Rights Act. I think the word impact includes the social impact of a decision. The complaints in the present case arose in a specific community, which has a collective interest in the decision and needs to be advised of the situation. There is nothing one-sided in this: both parties have had a measure of success in the litigation and I do not see what the Respondent has to fear from such a direction. [169] I have found one decision that might seem to go in a different direction. In Chopra v. Health Canada 2004 CHRT 27 (which was reviewed in the Federal Court and is now on appeal, but on other grounds), the Tribunal rejected a request for an order that the Respondent post its decision, at para. 62, across the country via electronic mail to all employees of the department. I think the situation before me is quite different, however. Ms. Schuyler is not asking for a mass e-mailing to a host of strangers, scattered across the entire country. [170] At the same time, I do not think it is practical to post the entire decision. I accordingly order the Respondent to post an announcement in reasonably large letters on the main bulletin board in the Administration Building, or some equally prominent place, advising Band members that a decision has been rendered by the Tribunal. The notice shall state that copies of the decision are available at the front counter or some convenient place. There shall be no charge for the copies. (v) Policy review [171] Ms. Schuyler also wants the Canadian Human Rights Commission to do a policy review and negotiate a Memorandum of Understanding with the Band to set up a process to resolve any human rights issues. She wants a human rights advocate appointed. And an independent appeal process. [172] I note that Chairperson Mactavish dealt with a similar situation in Nkwazi v. Correctional Service Canada T.D. 1/01 2001/02/05, at paras. 274-275, where she wrote: [274] Ms. Nkwazi seeks an order that [Correctional Service Canada] take measures, in consultation with the Canadian Human Rights Commission, to prevent such discriminatory practices from occurring in the future. While CSC does have policies and procedures in place which are designed to address workplace discrimination and harassment, it is evident from the way in which Ms. Nkwazi's complaints were dealt with by [Regional Psychiatric Centre] management that there is work to be done in this area. As a result, I order CSC to consult with the Commission with respect to its anti-discrimination and harassment policies, procedures and employee education programs, and to take measures to prevent the same or similar practices from occurring in the future. [173] The situation before me is notably different, however, since the evidence suggests that the discrimination against Ms. Schuyler was a product of the specific circumstances relating to Ms. Schuyler. There is no real evidence of systemic discrimination or larger issues. [174] There is the additional problem, as Madam Mactavish notes, that the Tribunal does not appear to have the authority to order the Commission to participate in such a process. There is still a mechanism in the Canadian Human Rights Act that the Respondent may avail itself of, if it wishes to consult with the CHRC. It would certainly be commendable if the Respondent did so. I am not, however, prepared to grant the kind of order that Ms. Schuyler is requesting. (vi) Costs and expenses [175] Ms. Schuyler has also asked for costs. This is complicated by two facts. The first is that she retained a lawyer to deal with the employment aspects of the matter, which were handled separately. She has discounted her request, in order to reflect this. The second fact, however, is that she is claiming costs for services that were rendered before the Commission. I do not think that she is entitled to these costs. [176] In Brooks v. Department of Fisheries and Oceans, 2005 CHRT 26 (2005/07/12), at para. 39, I held that any power that the Tribunal enjoys in awarding costs must be restricted to the Tribunal process. That decision has since been reviewed, without dealing with this precise issue. I also discussed the case law in Brown v. Royal Canadian Mounted Police, 2004 CHRT 30 (2004/09/01). I do not see anything in the circumstances before me that would justify revisiting the issue. In the circumstances, there is no need to deal with the more fundamental question whether the Tribunal has the power to award costs, which is apparently on its way to the Court of Appeal. [177] There are still the fees that Ms. Schuyler incurred in consulting a lawyer, in 2002, when she was seeking accommodation. This comes within a recognized exception in the law of costs and can be characterized as expenses under s. 53(1)(d) of the Canadian Human Rights Act. She is also entitled to disbursements, for transportation, copying, etc., related to the complaint. Rather than open the door to a further dispute between the parties, I think it is better to award a lump sum of six hundred dollars, which in my view constitutes a reasonable amount for these expenses. (vii) Remaining matters [178] It is for the parties to decide whether they wish to submit a written order. If that is the case, I would suggest that it may be more convenient for the Respondent to draft the order, since Ms. Schuyler is not represented by a lawyer. She would naturally be welcome to review the draft of any order with a lawyer of her choice. [179] The compensation and expenses that I have awarded shall be paid within thirty days of the expiry of any period of review or appeal. I will retain jurisdiction to deal with any outstanding matters. Signed by Dr. Paul Groarke OTTAWA, Ontario August 18, 2006 PARTIES OF RECORD TRIBUNAL FILES: T980/10004 and T1014/13404 STYLE OF CAUSE: Karen Schuyler v. Oneida Nation of the Thames DATE AND PLACE OF HEARING: May 2 to 6, 2005 September 26 to 30, 2005 December 6, 2005 London, Ontario DECISION OF THE TRIBUNAL DATED: August 18, 2006 APPEARANCES: Karen Schuyler On her own behalf Daniel Pagowski For the Canadian Human Rights Commission John C. Peters For the Respondent

2006 CHRT 35

CHRT

Vilven v. Air Canada

en

2006-08-24

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6730/index.do

2023-12-01

Vilven v. Air Canada Collection Canadian Human Rights Tribunal Date 2006-08-24 Neutral citation 2006 CHRT 35 File number(s) T1079/6005 Decision-maker(s) Sinclair, Grant, Q.C. Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE GEORGE VILVEN Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - AIR CANADA Respondent RULING 2006 CHRT 35 2006/08/24 MEMBER: J. Grant Sinclair [1] George Vilven has filed a complaint with the Canadian Human Rights Commission dated August 5, 2004, alleging that Air Canada has discriminated against him on the ground of age, contrary to ss. 7 and 10 of the Canadian Human Rights Act. [2] By application dated June 29, 2006, Air Canada Pilots Association applied to the Tribunal for interested party status. [3] The Commission, the Complainant (with a caveat) and Air Canada consent to this application. [4] The Tribunal also received an application dated June 20, 2006, from Fly Past 60 Coalition, a group of pilots or former pilots of Air Canada, asking to be added as an interested party to the complaint. [5] The Commission consented to the application by the Fly Past 60 Coalition. Air Canada opposed it as did ACPA. ACPA did not feel in any way constrained in opposing the Coalition's application even though it has no status or standing to do so. [6] I have reviewed the two applications and the responses of the parties to the complaint. I have concluded that ACPA should be added as an interested party. It is a signatory to the collective agreement with Air Canada which contains provisions relating the mandatory retirement of Air Canada pilots. As such, it has an obvious interest in these proceedings. [7] I've also concluded that Fly Past 60 Coalition should be added as an interested party. In this regard, I refer to and adopt the reasoning of Commission counsel in his letter of July 12, 2006 setting out the reasons why the Commission supports the Coalition's application. [8] Both ACPA and the Fly Past 60 Coalition will be permitted to fully participate in the hearing of this complaint before the Tribunal, including the introduction of evidence and cross-examination of witnesses, to the extent that such participation is not duplicative of the evidence and submissions of the Commission, the Complainant or Air Canada. [9] The schedule for disclosure for the Complainant, the Commission and Air Canada will remain the same. The schedule for APCA and Coalition disclosure will be as set out in their applications. Any request for changes in the disclosure schedules will be dealt with at the conference call on September 8, 2006. Signed by J. Grant Sinclair OTTAWA, Ontario August 24, 2006 PARTIES OF RECORD TRIBUNAL FILE: T1079/6005 STYLE OF CAUSE: George Vilven v. Air Canada RULING OF THE TRIBUNAL DATED: August 24, 2006 APPEARANCES: George Vilven For himself Daniel Pagowski For the Canadian Human Rights Commission Thomas Brady For the Respondent Steve Waller For the Air Canada Pilots Association Raymond Hall For the Fly Past 60 Coalition

2006 CHRT 36

CHRT

Montreuil v. Canadian Forces Grievance Board

en

2006-08-25

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6727/index.do

2023-12-01

Montreuil v. Canadian Forces Grievance Board Collection Canadian Human Rights Tribunal Date 2006-08-25 Neutral citation 2006 CHRT 36 File number(s) T1108/8905 Decision-maker(s) Hadjis, Athanasios Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE MICHELINE MONTREUIL Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADIAN FORCES GRIEVANCE BOARD Respondent RULING 2006 CHRT 36 2006/08/25 MEMBER: Athanasios D. Hadjis [1] During a case management conference call held on June 21, 2006, the Canadian Forces Grievance Board (the Board) raised concerns about the sufficiency of Me Micheline Montreuil's summary regarding the anticipated testimony of her witness, Pierre Lacasse. Consequently, Me Montreuil prepared a more detailed summary, which she provided to the Board shortly thereafter. On July 11, 2006, the Board informed the Tribunal that in its view, the amended summary of Mr. Lacasse's testimony was still insufficient. [2] In this amended summary, which is about 20 lines long, Me Montreuil explains that Mr. Lacasse will testify that he is a retired member of the military who worked for the Board on a contractual basis until November 2003. He will testify that he heard two Board managers (whose names are specified in the summary) making disparaging remarks regarding Me Montreuil, which included comments to the effect that she would not be hired because she is a transgendered person and that it would be hard to imagine a transgendered person working as a grievance officer. According to the summary, Mr. Lacasse will also testify that he has never met nor is he related to Me Montreuil. He will also give evidence that it was he who contacted Me Montreuil to inform her of the conversation that he had heard. [3] The Board alleges that the summary is insufficient because the following details are lacking: What was the context of the conversation? Who was present and who took part in the conversation? To whom were the remarks made? How many times were the remarks made and on what date(s)? Where were the remarks made? Where was Mr. Lacasse when he heard the remarks? [4] The Board claims that it will be unable to prepare its defence without answers to these questions. [5] The summary of anticipated testimony forms part of the Statement of Particulars that each party is required to prepare and file pursuant to Rule 6(1) of the Tribunal's Rules of Procedure. Aside from this summary, the Statement of Particulars must contain a list of documents to be disclosed, and set out the material facts that the party seeks to prove in support of its case, as well as its position on the legal issues raised and the relief that the party is seeking, if applicable. [6] As the Tribunal noted in Public Service Alliance of Canada v. Northwest Territories (Minister of Personnel), [2000] C.H.R.D. No. 9 (C.H.R.T.)(QL) at para. 7, a party is only entitled to the material facts on which the opposing party is relying in pleading its case. The party filing its Statement of Particulars is not required to plead its evidence at this stage. This principle would logically extend, in my view, to the summaries of testimonies that form part of a Statement of Particulars. As the Tribunal went on to state, the rationale behind the procedure of filing Statements of Particulars is to clarify the issues in the case and establish the case that the other parties must meet in presenting their own evidence. [7] In the present case, the details provided in Me Montreuil's amended summary are more than sufficient to inform the Board of the case it must meet. The Board has been put on notice that Mr. Lacasse will testify that he heard two named managers speak of Me Montreuil in disparaging terms to the effect that she would not be hired due to her transgendered status. [8] It would appear from the Board's written submissions on its motion that its concerns regarding the sufficiency of Me Montreuil's summary are rooted in the fact that the two named managers who allegedly engaged in the conversation deny having any recollection of any such discussion. [9] I fail to see how this has any bearing on the matter before me. It is hardly unheard of for two opposing parties to have contradictory recollections of events. This is precisely why hearings are held and why tribunals are called upon to render decisions after hearing all of the evidence. It is important to not lose sight of the fact that Me Montreuil has the ultimate burden of proving her case, with evidence that may include Mr. Lacasse's testimony regarding the alleged conversation. If the Board, based on the word of its employees, believes it has grounds to question the accuracy or veracity of Mr. Lacasse's evidence, it can explore these questions through its cross examination of this witness. [10] I therefore see no reason to order Me Montreuil to provide further details regarding the proposed testimony of Mr. Lacasse. The Board's motion is dismissed. Signed by Athanasios D. Hadjis OTTAWA, Ontario August 25, 2006 PARTIES OF RECORD TRIBUNAL FILE: T1108/8905 STYLE OF CAUSE: Micheline Montreuil v. Canadian Forces Grievance Board RULING OF THE TRIBUNAL DATED: August 25, 2006 APPEARANCES: Micheline Montreuil For herself Ikram Warsame For the Canadian Human Rights Commission Nadine Dupuis For the Respondent

2006 CHRT 37

CHRT

Bernatchez v. Innue of Unamen Shipu (Council)

en

2006-08-29

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6728/index.do

2023-12-01

Bernatchez v. Innue of Unamen Shipu (Council) Collection Canadian Human Rights Tribunal Date 2006-08-29 Neutral citation 2006 CHRT 37 File number(s) T1060/4105 Decision-maker(s) CAHILL, Kathleen Decision type Decision Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE DANNIE BERNATCHEZ Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - THE COUNCIL OF THE INNU OF UNAMEN SHIPU Respondent DECISION 2006 CHRT 37 2006/08/29 MEMBER: Kathleen Cahill [TRANSLATION] I. INTRODUCTION II. FACTS III. LEGAL BACKGROUN IV. ANALYSIS A. Calculation of the SMLB B. Reimbursement of sick leave V. CONCLUSION I. INTRODUCTION [1] Dannie Bertnatchez (hereinafter the complainant) taught at the École Olamen located in La Romaine on the Lower North Shore. The Council of the Montagnais de Unamen Shipu (hereinafter the respondent) is responsible for the École Olamen. From August 25, 2003 to December 27, 2003 (a period of 18 weeks), the complainant was on maternity leave, followed by parental leave until June 21, 2004. During her maternity leave, the complainant received supplementary maternity leave benefits (hereinafter SMLB) from the respondent. [2] The complainant submits that the respondent discriminated against her by refusing to calculate her annual salary for the purposes of the SMLB on the basis of daily remuneration equivalent to 1/200 of her annual remuneration. The respondent used daily remuneration equivalent to 1/260 of her annual remuneration to make the calculation. Furthermore, the complainant contests the respondent's refusal to pay her an amount equivalent to the unused sick days accumulated during her maternity leave. She submits that these refusals contravene section 7 of the Canadian Human Rights Act1 (hereinafter the Act) because they have the effect of disadvantaging her during her employment on the basis of a prohibited ground of discrimination, namely sex. [3] At the hearing, the complainant was represented by counsel, as was the respondent. The Commission did not appear. Three witnesses were heard: for the complainant, she herself and another teacher, Marie-Josée Chamberland. The respondent called Réjean Laberge, Director of Educational Services in the respondent's employ. II. FACTS [4] The complainant has been employed by the respondent since September 1998. She teaches students at the secondary level. Since August 1999, the complainant has been considered to be a regular full-time teacher. The complainant explained that, as a regular full-time teacher, she is paid for 200 days of work corresponding to 40 weeks. Since regular teachers are not eligible for employment insurance during the summer period, it was agreed with the respondent that the annual salary of the regular teachers would be spread over 26 pay periods (260 days) to enable them to receive a salary during the summer period. [5] During the 2003-2004 school year, the complainant began her maternity leave on August 25, 2003, followed by parental leave from December 29, 2003 to June 21, 2004. During her maternity leave (18 weeks), the complainant received from the respondent SMLBs equivalent to 93% of her annual salary based on 26 pay periods minus the maternity benefits paid by employment insurance. At the end of her parental leave, the complainant returned to work on June 22 and 23, 2004. For each of these two days, she was paid by the respondent on a basis of 1/200 of her annual salary rather than one of 1/260. The complainant did not receive remuneration from the respondent during the summer of 2004. [6] The complainant explained that the only policy of the respondent brought to her attention throughout her employment was the [TRANSLATION] Personnel Policy of the École Olamen in la Romaine-May 2001 (hereinafter the May 2001 school policy). [7] In her testimony, the complainant spoke about her meetings and telephone conversations during 2003-2004 with the respondent's Director of Educational Services, Réjean Laberge. He represents the respondent with respect to the application of the policies concerning the conditions of employment. First of all, she had to clarify with Mr. Laberge the annual basic salary used to calculate the SMLB. Mr. Laberge admitted that this salary was $57,960 and not $57,860. Second, the complainant requested that the SMLB be paid to her during the waiting period imposed by employment insurance, that is weeks 1 and 2 and the last week of her maternity leave. The respondent acceded to the complainant's request. The complainant also asked Mr. Laberge to have the respondent give her the SMLB on an annual salary based on daily remuneration calculated on 200 days rather than on 260 days. According to the complainant's testimony, Mr. Laberge told her that he accepted her request. One month later, however, the complainant received a letter from Mr. Laberge denying her request. In this letter, Mr. Laberge explained to the complainant that he refused to pay her the equivalent of the sick days accumulated during her maternity leave. [8] The second witness heard for the complainant was Marie-Josée Chamberland, a regular full-time teacher with the respondent since September 2000. In her testimony, she stated that the only policy of the respondent brought to her attention was the May 2001 school policy. She testified that in August 2004, Mr. Laberge informed the employees that the respondent had decided to no longer give the SMLB during 2004-2005. On that occasion, he gave all the employees a copy of the respondent's new policy. This policy was not filed in evidence. [9] For the respondent, the only witness heard was Réjean Laberge. He has been in the respondent's employ since January 2001. Between January 2001 and September 2003, he held the office of school principal. In September 2003, he combined the duties of school principal and that of Director of Educational Services. Since January 2004, Mr. Laberge's duties have been exclusively those of the Director of Educational Services. In this capacity, Mr. Laberge is responsible for the application of the policies governing conditions of employment. [10] Mr. Laberge explained that the reference document concerning the conditions of employment of all the respondent's employees is the [TRANSLATION] Personnel Policy of the Council of the Innu of Unamen-Shipu dated November 2001 (hereinafter the November 2001 Council policy). When he assumed his duties as Director of Educational Services in September 2003, his predecessor's Assistant Director of Educational Services gave him the [TRANSLATION] Personnel Policy of the École Olamen-March 2003 (hereinafter the March 2003 school policy). The witness stated that prior to the March 2003 policy, there had been another policy entitled [TRANSLATION] École Olamen Policy-May 2002 (hereinafter the May 2002 school policy). It emerged from Mr. Laberge's testimony that there was a school policy and a Council policy, which applied to all the employees of the respondent. The school policy he applied in the complainant's case was the policy dated March 2003. [11] In his testimony, Mr. Laberge stated that, prior to the complainant's maternity leave, two other teachers received SMLB and he applied the same calculation, that is 93% of their annual salary over 260 days. [12] Concerning the sick leave, Mr. Laberge explained his refusal as follows: Q. [José Rondeau]: So, in the same way, the claim for sick days, what was your reason for refusing it? There cannot be any sick leave that can be converted into pay, you cannot accumulate sick leave if you have not worked. Someone who is on unpaid leave does not accumulate any sick leave. III. LEGAL BACKGROUND [13] Section 3 of the Act includes sex as a prohibited ground of discrimination while stating: Where the ground of discrimination is pregnancy or child-birth, the discrimination shall be deemed to be on the ground of sex. The Supreme Court of Canada recognized a situation of discrimination in employment based on pregnancy in its decision in Brooks v. Canada Safeway Ltd.2 In that case, the Court found that it was discriminatory for the wage insurance plan in effect at the employer to deprive pregnant employees of disability benefits for seventeen weeks beginning in the tenth week preceding the expected week of the birth and ending in the sixth week following the birth. [14] It is not necessary for the discriminatory considerations to be the only reason for the alleged actions in order for a finding to be made that there was a basis for the complaint. It is sufficient for the discrimination to have been one of the factors on which the respondent's decision was based.3 [15] It is the responsibility of the person claiming to be discriminated against in terms of his or her human rights to establish this fact before the tribunal. According to Ontario (Ontario Human Rights Commission) v. Etobicoke (Municipality), a complainant must establish... a prima facie case of discrimination.4. O'Malley v. Simpson Sears Ltd. states that this prima facie case 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.5 [16] In Canada (Minister of National Defence) v. Mongrain,6 the Federal Court of Appeal states that it is not sufficient for the complainant to assert that he or she has reasonable grounds to believe that he or she is the victim of discrimination in order to shift the onus of proof to the respondent. The complainant must establish a prima facie case. [17] Once the prima facie case is established, the respondent has the onus of providing reasonable justification showing that the decision made concerning the complainant was not based on a prohibited ground of discrimination. The justification given must not be a mere pretext.7 IV. ANALYSIS [18] There are two questions before the Tribunal. The first concerns the complainant's allegation that the respondent discriminated against her in refusing to calculate the SMLB on the basis of her annual remuneration divided by 200 days of work. More precisely, the complainant claims from the respondent: [TRANSLATION] 93% of the difference between my annual salary divided by 20 pay periods (200 days of work) and that divided by 26 pay periods (260 days), for 18 weeks. [19] The second question concerns the complainant's allegation that the respondent discriminated against her in refusing to give her an amount equivalent to the sick days accumulated during her maternity leave converted into cash. According to the complainant, she had accumulated 3.15 days of sick leave during her maternity leave. [20] First of all, the Tribunal will analyse the question concerning the calculation of the SMLB. Then, the Tribunal will examine the question of the sick leave. A. Calculation of the SMLB [21] It emerges from the evidence that the SMLB are given to regular employees who are eligible for employment insurance. The purpose of the SMLB, as set out in the school policies, is to [TRANSLATION] supplement employment insurance benefits during a temporary cessation of work caused solely by pregnancy. All the school's policies provide that the SMLB plan applies to [TRANSLATION] regular employees who become pregnant. Finally, all these policies contain the following statement: The amount of the weekly benefits payable under the plan and the gross weekly employment insurance benefits correspond to 93% of the employee's usual remuneration. [22] In the complainant's view, the usual remuneration of a regular employee correspond to the provision of 200 days of work, the remuneration for which is extended over 26 pay periods. Again according to the complainant, in the case of a part-time employee, the remuneration is not extended over 26 pay periods. It is only the regular employees who, in order to ensure remuneration throughout the summer, agree to have their remuneration extended over 26 pay periods. [23] At the outset, the Tribunal finds that all the conditions governing the calculation of the SMLB are not expressly set out in the school policies. Besides the fact that all these policies state that the calculation of the SMLB corresponds to [TRANSLATION] 93% of the employee's usual remuneration, no indication is given as to whether this calculation must be divided by 20 or 26 weeks. However, all the school policies state that [TRANSLATION] the 1/200-days calculation is used to determine the salary of part-time employees (May 2001 school policy) or to determine the salary of part-time or contract employees (May 2002 and March 2003 school policies). All the school policies acknowledge the suppletive nature of the Council's policies. In fact, these policies state: In the event that there are organizational vacuums in this document, the General Policy of the Band Council shall have the force of law. [24] The November 2001 Council Policy provides the following for regular and casual employees: The employee's remuneration is established on an annual basis reduced to a basis of two (2) weeks (or seventy (70) hours for full-time employees), by dividing the anticipated salary by a conversion factor of twenty-six (26). [25] Mr. Laberge, the representative of the respondent, wrote (Exhibit P-8) that the provision of the SMLB was discretionary. He repeated this point during his testimony. In the Tribunal's opinion, this statement has no impact on this case because the respondent agreed to pay the SMLB to the complainant. [26] The evidence shows that the representative of the respondent always considered the SMLB to be an accrued benefit of regular employees who were pregnant and that the compensation paid seemed to him to be [TRANSLATION] fair. The Tribunal notes that it does not have a duty to determine whether the respondent's decision to calculate the SMLB by dividing by 26 weeks is fair. The Tribunal must determine whether discrimination occurred. In order for this question to be answered in the affirmative, the complainant must establish a prima facie case that she was disadvantaged during her employment on a prohibited ground of discrimination, namely her pregnancy. [27] In this case, in order to determine whether the complainant was disadvantaged on a prohibited ground, a comparative analysis is required in order to ascertain whether the rule affects a person or group of persons differently from others to whom it may apply.8 [28] Thus, the Tribunal must identify the group that is also affected by the same rule. The complainant submits that, as a regular employee, her situation must be compared with the group to which she belongs, that is the regular employees. In other words, according to the complainant, the following question must be asked: does the respondent, because of its method of calculating the SMLB, treat the complainant differently from the regular female employees who are not pregnant? In the complainant's view, the expression [TRANSLATION] usual remuneration used to calculate the SMLB must be compared with the definition of usual remuneration allowed and paid to regular employees who are not pregnant and who receive remuneration. [29] For its part, the respondent argues that the complainant's situation must be compared with that of an employee [TRANSLATION] who did not work. An employee is entitled to the residue (the overpayment deducted because of the extension of the remuneration over 26 weeks) only if he or she worked and solely for that part of the time that was worked. In the respondent's view, the complainant's situation must be likened to that of an employee on unpaid leave. [30] In Brooks, the group with which the complainants identified was all the employees covered by the employer's group insurance plan. As we noted earlier, this plan included selective coverage and excluded pregnant workers from weekly benefits in the case of loss of wages on account of illness and accident for a period of seventeen weeks. During these seventeen weeks, pregnant women could not receive any benefits even if they suffered from an illness quite unrelated to their pregnancy. The plan accordingly had the effect of treating pregnancy differently from other forms of inability to work linked to health problems. The Court stated: Increasingly, employee benefit plans have become part of the terms and conditions of employment. Once an employer decides to provide an employee benefit package, exclusions from such schemes may not be made in a discriminatory fashion. Selective compensation of this nature would clearly amount to sex discrimination. Benefits available through employment must be disbursed in a non-discriminatory manner.9 [31] In the instant case, the SMLB are a benefit intended exclusively for regular employees who are pregnant. Regular employees who are not pregnant are not subject to the rule of the SMLB. In Brooks, the rule excluding pregnant women was contained in a health insurance plan that applied to all the employees. The facts in this case are different. [32] In the judgment of the Tribunal, beyond the interpretation that may be given to the words [TRANSLATION] usual remuneration, it is necessary above all to determine whether, when the complainant receives the SMLB, she must be considered to be an employee on paid or unpaid leave. Only once this has been determined can the Tribunal determine whether the complainant may properly refer to the regular employees who are not pregnant and who receive remuneration as a comparison group. [33] A reading of all the school policies filed in evidence shows that the SMLB are described as benefits and not as salary or remuneration. Certainly, benefits are calculated on the [TRANSLATION] usual remuneration but this does not mean that they constitute remuneration or that they must be likened to salary or remuneration. In the opinion of the Tribunal, the SMLB are designed to make up for a lack of remuneration for maternity leave, but this does not mean that the SMLB can be described as remuneration. [34] Furthermore, all the school policies also use the words [TRANSLATION] maternity leave allowance to describe the SMLB. Once again, the word remuneration or salary is not used. [35] In Dumont-Ferlatte,10 the Canadian Human Rights Tribunal dismissed the claim of employees of the Public Service of Canada alleging discrimination on the basis of sex on the ground that annual leave and sick leave was not credited to them and that they were not paid monthly bilingual bonuses during their maternity leave. In that case, the complainants alleged that the SMLB received were remuneration. Consequently, according to the complainants, for the purpose of establishing the appropriate comparison group, they had to be regarded as being on paid maternity leave. The Tribunal found that the SMLB did not constitute remuneration and that whether or not there was discrimination had to be analysed by comparing the consequences attached to the different types of unpaid leave. The Tribunal stated: The very essence of a contract of employment is a direct relationship between earnings or remuneration and the performance of work. When she is on maternity leave, however, a pregnant woman is not performing work for her employer and cannot receive remuneration.11 (...) Since a pregnant woman is unable, by reason of her absence on maternity leave, to perform work for which she would receive remuneration, the maternity allowance paid by the employer serves to make good the unfavorable situation in which she finds herself and does not constitute remuneration.12 [36] In the opinion of this Tribunal, that decision applies to the facts in the instant case. It should be noted that the decision in Dumont-Ferlatte was the subject of judicial review in the Federal Court of Canada Trial Division. Madam Justice Tremblay-Lamer dismissed the application. In paragraph 46 of the judgment, she stated: The evidence given before the Tribunal was that maternity leave is a form of leave without pay. Since no work is done because of maternity, the employee receives no pay. Accordingly, the Tribunal was correct to compare maternity leave with the other forms of leave without pay provided for in the collective agreement, including paternity leave without pay, adoption leave without pay, leave without pay for the care and nurturing of pre-school age children, leave without pay for relocation of spouse, leave without pay for personal needs, sick leave without pay, leave without pay for education and training, military leave without pay, leave without pay to participate in the activities of an international organization, leave without pay to run in an election and leave without pay for union activities.13 [37] Thus, the Tribunal finds that the complainant must be considered to have been on unpaid leave. The complainant cannot be compared with regular employees who are not pregnant and are not on unpaid leave. This is not the appropriate comparison group. [38] In the instant case, it is also necessary to consider the fact that the complainant did not do any work. In Cramm v. Canadian National Railway Co.,14 the Human Rights Appeal Tribunal stated: In our view, the reasoning in Dumont-Ferlatte is also more consistent with the essential nature of the employment contract. To reiterate: the employer's obligation to pay is conditional upon work being performed. There is no general obligation on employers to compensate employees who are not providing services.15 [39] The decision in Cramm was the subject of an application for judicial review, which was dismissed. In that decision, Justice MacKay stated: The Commission urged that the Review Tribunal erred by considering the nature of the employment contract in coming to the conclusion that there was no prima facie case of discrimination. That was done in assessing the purposes of ESIMA, an assessment essential in considering the purpose of employment related rules, in accord with the process established in Gibbs. In my opinion, the nature of the rule in question, based on the underlying principle of an employment contract that one is paid for service performed, is an essential element in assessing the purpose of the rule in question...16 [40] The complainant did not receive SMLB from the respondent in consideration of any work that was done. The regular employees are not therefore in the same situation as the complainant, the reason being that their remuneration is consideration for work that is done. To be sure, a regular employee who leaves in the middle of the school year will be entitled to reimbursement of the amount that was deducted to ensure that the payment was extended over 26 weeks. However, the calculation of the excessive amounts deducted is in consideration of the work done, for which X remuneration was paid. In the instant case, the Tribunal may not compare the complainant's situation with that of the regular employees who were not pregnant and who did work. [41] Thus, the Tribunal finds that the complainant has not established a prima facie case showing that the respondent discriminated against her because of her pregnancy. B. Reimbursement of sick leave [42] Concerning this aspect of the complaint, the complainant considers that the respondent discriminated against her by refusing to reimburse her for the sick leave accumulated during her absence on maternity leave. The complainant relies on the May 2001 school policy. This policy provides as follows: 22.1 An employee on maternity leave shall retain her days of sick leave and shall remain covered by the insurance plan in effect. [43] In the respondent's view, the May 2001 school policy submitted by the complainant does not apply. The respondent submits that the policy in effect at the time the complainant exercised her right to take maternity leave was the March 2003 school policy. Article 22.1 is no longer included in this or the earlier policy, namely the May 2002 school policy. [44] Consequently, the respondent no longer recognizes an employee on maternity leave as having the right to convert the sick leave she accumulates during her absence into cash. [45] In the complainant's view, it is the May 2001 school policy that applies since the respondent never communicated the March 2003 and May 2002 school policies to her. [46] This having been said, the jurisdiction of the Tribunal is to determine whether, by refusing to reimburse her for the sick leave accumulated during her maternity leave, the respondent discriminated against the complainant. First, the Tribunal must ascertain whether there is a prima facie case of discrimination. [47] It emerges from the evidence that the respondent justified its refusal to reimburse the complainant for the accumulated sick leave because, in the respondent's view, the May 2001 school policy no longer applied (Exhibit P-11, p. 3). It is established that the complainant never received a copy of the May 2002 and March 2003 school policies. Assuming that the respondent was required to apply the May 2001 school policy to the complainant because it had not notified the complainant that it no longer applied, the Tribunal cannot conclude that there was a prima facie case of discrimination. [48] The respondent's refusal to apply the May 2001 school policy does not in itself create a prima facie case of discrimination against the complainant. To be sure, there was a misunderstanding between the parties as to whether the respondent's decision to apply a policy that was never communicated to the complainant was correct. However, the Tribunal cannot link this misunderstanding and the prohibited ground of discrimination that is pregnancy. [49] Despite what has been said above and assuming that the complainant has established a prima facie case of discrimination, the Tribunal considers that all the evidence adduced does not show that the respondent discriminated against the complainant. In his letter to the Canadian Human Rights Commission (Exhibit I-3), the representative of the respondent stated that a provision allowed them to amend a policy before the beginning of each school year. The May 2002 and March 2003 school policies contained such a provision. The May 2001 school policy stated the following: [TRANSLATION] This policy may be amended by the Council in office. The respondent accordingly reserved the right to amend the May 2001 school policy. It did so when it reviewed and amended this policy on two occasions. Consequently, the respondent's refusal to apply the May 2001 school policy is not a pretext and is a reasonable explanation. [50] Concerning the respondent's refusal to acknowledge that it was possible for a regular employee who was pregnant to convert the sick leave accumulated during her maternity leave into cash, the Tribunal analysed the testimony of the representative of the respondent and the letter he sent to the complainant (Exhibit P-8). From this evidence, the Tribunal understands that when the representative of the respondent wrote to the complainant (Exhibit P-8) and answered the questions of José Rondeau, counsel for the complainant, concerning the sick leave, he referred to the policy he felt was applicable, that is the March 2003 school policy. The reason why this March 2003 school policy no longer recognized this benefit lies in the fact that, according to the representative of the respondent, employees on maternity leave are considered to be on unpaid leave. Since they do not work, employees on unpaid leave cannot accumulate sick leave during their absence. In the Tribunal's judgment, the decision in Dumont-Ferlatte17 confirms the correctness of such a justification. [51] Certainly, the respondent could have maintained the benefit recognized in article 22.1 of the May 2001 school policy. However, the decision to remove this benefit and the reasons given in support of its removal constitute a reasonable explanation that was not a pretext. [52] Consequently, the Tribunal finds that the complainant did not establish a prima facie case of discrimination and that, if she had done so, the respondent gave a reasonable explanation that was not a pretext or contrary to the Act. V. CONCLUSION [53] The Tribunal finds that the complainant did not establish that she was discriminated against. [54] For the reasons given above, the complaint is dismissed. Kathleen Cahill OTTAWA, Ontario August 29, 2006 1 R.S. 1985, c. H-6. 2 [1989] 1 S.C.R. 1219. 3 Holden v. Canadian National Railway Co. (1991), 14 C.H.R.R. D/12, para. 7 (F.C.A.). 4 [1982] 1 S.C.R. 202, p. 208, para. 7. 5 [1985] 2 S.C.R. 536, p. 558, para. 28. 6 [1991] 1 F.C.J. No. 945 (Q.L.). 7 Lincoln v. Bay Ferries 2004 FCA 204, para. 23, and Morris v. Canada (Canadian Armed Forces) 2005 FCA 154, paras. 26 and 27. 8 Supra, note 5, para. 18. 9 Supra, note 2, page 1240. 10 Dumont-Ferlatte v. Canada (Employment and Immigration Commission), [1996] CHRD No. 9, (Q.L.). 11 Id, para. 76. 12 Id, para. 80. 13 Dumont-Ferlatte v. Canada (Employment and Immigration Commission), 1997 F.C.J., No. 1734, para. 47. (Q.L.). 14 Cramm v. Canadian National Railway Co. (Terra Transport), H.R.R.T., [1988] C.H.R.D. No 4, (Q.L.). 15 Para. 63. 16 Canadian Human Rights Commission v. Canadian National Railway Co. (Terra Transport), F.C.A., D.T.E. 2000T-1007, para. 26. 17 Supra, note 10. PARTIES OF RECORD TRIBUNAL FILE: T1060/4105 STYLE OF CAUSE: Dannie Bernatchez v. The Council of the Innue of Unamen Shipu DATE AND PLACE OF HEARING: May 1, 2006 Sept-Îles (Quebec) DECISION OF THE TRIBUNAL DATED: August 29, 2006 APPEARANCES: Mr. José Rondeau For the Complainant No one appearing For the Canadian Human Rights Commission Mr. Serge Belleau For the Respondent

2006 CHRT 38

CHRT

Moore v. Canada (Canadian Grain Commission)

en

2006-08-30

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6725/index.do

2023-12-01

Moore v. Canada (Canadian Grain Commission) Collection Canadian Human Rights Tribunal Date 2006-08-30 Neutral citation 2006 CHRT 38 File number(s) T967/8704 Decision-maker(s) Sinclair, Grant, Q.C. Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE KATHLEEN MOORE Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADIAN GRAIN COMMISSION Respondent RULING 2006 CHRT 38 2006/08/30 MEMBER: J. Grant Sinclair [1] In her motion dated July 24, 2006, the Complainant, Kathleen Moore, asked that her complaint be amended to add allegations of discrimination under ss. 10 and 14.1 of the Canadian Human Rights Act. As to the section 14.1 amendment, the Respondent's position is that it does not oppose but does not consent to this amendment. The facts alleged in support demonstrate that the criteria for such an amendment, as enunciated in many Tribunal rulings, are satisfied. Accordingly, the complaint is amended to add the allegations under s. 14.1 of the Act. [2] In opposing the s. 10 amendment request, the Respondent first argues that, under s. 51 of the Act, it is the Commission that is the guardian of the public interest. Only the Commission, and not an individual complainant, can put forward allegations of systemic discrimination under s. 10 and seek a systemic remedy under s. 53(2)(a) of the Act. The Commission has withdrawn from these proceedings and did not seek such an amendment. [3] The Respondent also relies on the Tribunal's ruling in Toth and Canadian Human Rights Commission v. the Kitchener Aero Avionics, 2005 CHRT 19, specifically the reasoning of the Tribunal in paragraph 37 of its decision. In this paragraph, the Tribunal noted that the remedies sought by the Complainant are personal and compensatory and do not engage the larger public interest. [4] In dealing with the public interest argument, it is not necessary to define public interest as found in s. 51 of the Act. It suffices to say that s. 51 says nothing about an individual complainant's standing to file a complaint alleging a systemic discriminatory practice. In fact, s. 40 of the Act expressly allows an individual or group of individuals to file a complaint with the Commission. This section does not preclude an individual systemic complaint. [5] Nor is there anything in s. 53(2)(a) of the Act which constrains the Tribunal in granting a systemic remedy where the complainant is an individual and not the Commission. When the Tribunal is constrained in awarding the full range of remedies under s. 53, it is expressly provided for in the Act. An example of this is s. 54(1). [6] Turning now to Toth, the Tribunal had to decide a res judicata motion, not a motion to add s. 10 to the complaint. In my opinion, the Tribunal's comments in paragraph 37 must be read in the context of the particular facts of that case and is distinguishable from the present case. [7] Even if Toth may be read as limiting a complainant to a personal and compensatory remedy, it conflicts with the Tribunal ruling in Aleta Gaucher and Canadian Human Rights Commission v. Canadian Armed Forces, 2005 CHRT 1. [8] In Gaucher, the Commission sought to amend a complaint to add a s. 10 allegation. The Tribunal concluded that no amendment was necessary, but granted the amendment to clarify, as it said, the legalities of the situation. The Tribunal reasoned (in paragraph 15) that s. 53(2)(a) of the Act does not distinguish between the private and the systemic aspects of a complaint and it is a mistake to draw a dichotomy between complaints under s. 7 and s. 10 of the Act. [9] I am not bound by the Toth decision and I prefer the Tribunal reasoning in Gaucher. It is a case that involves the same question as this case. [10] For these reasons, I have concluded that the Complainant in this case may, within the framework of her current complaint, allege that the Respondent has engaged in systemic discriminatory practices and may claim a systemic remedy. She can do this without amendment to her complaint. Of course, it is up to the Tribunal hearing the complaint to determine whether or not such allegations can be sustained and if so, whether a systemic remedy is the appropriate remedy in the circumstances. [11] I would like to note that the Complainant's motion and the submissions of both counsel have had very beneficial results. The Respondent has repeatedly claimed, and with justification, that it has no clear appreciation of the case that it has to meet. [12] In the materials submitted by the Complainant in support of her motion and in her Amended Statement of Particulars, the Complainant has now clearly defined the facts upon which she is relying; the issues that arise out of her complaint; and the remedies she seeks. This is all to the good and should allay the Respondent's concerns. [13] There were also some collateral matters raised at the hearing. The Complainant has asked the Respondent to provide further production, specifically as set out in paragraphs 51-56 of the Complainant's Amended Statement of Particulars. The Respondent will review these requests and advise the Complainant of its position by October 6, 2006. [14] Finally, the Tribunal has tentatively re-scheduled the hearing of the complaint to commence in Thunder Bay, in the week of April 2-5, 2007, continue in the week of April 10-13, and, if necessary, to resume on April 23, 2007. Signed by J. Grant Sinclair OTTAWA, Ontario August 30, 2006 PARTIES OF RECORD TRIBUNAL FILE: T967/8704 STYLE OF CAUSE: Kathleen Moore v. Canadian Grain Commission DATE AND PLACE OF HEARING: Ottawa, Ontario August 22, 2006 RULING OF THE TRIBUNAL DATED: August 30, 2006 APPEARANCES: Craig Spencer For the Complainant No one appearing For the Canadian Human Rights Commission Sid Restall For the Respondent

2006 CHRT 39

CHRT

Buffett v. Canadian Forces

en

2006-09-15

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6726/index.do

2023-12-01

Buffett v. Canadian Forces Collection Canadian Human Rights Tribunal Date 2006-09-15 Neutral citation 2006 CHRT 39 File number(s) T976/9604 Decision-maker(s) Hadjis, Athanasios Decision type Decision Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE TERRY BUFFETT Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADIAN FORCES Respondent REASONS FOR DECISION 2006 CHRT 39 2006/09/15 MEMBER: Athanasios D. Hadjis I. FACTS A. Mr. Buffett's complaint B. Why did Mr. Buffett require funding for the reproductive procedure? C. What are IVF and ICSI? D. Do provincial health care plans fund IVF and IVF with ICSI treatments? E. The CF's health care plan F. Does the CF provide any health services to persons like Rhonda Buffett, who are family members of CF members? G. Does the CF's health care plan fund IVF or IVF with ICSI treatments for CF members? H. What steps did Mr. Buffett take when he learned of the change in CF's policy? II. ANALYSIS A. What must Mr. Buffett demonstrate to establish discrimination in this case? B. Has a prima facie case of discrimination based on sex pursuant to s. 7 of the Act been established? (i) Mr. Buffett's and the Commission's position (ii) The CF's position (iii) A comparative analysis C. Does the CF have a reasonable explanation for its otherwise discriminatory practice? (i) Did the CF adopt its policy for a purpose or goal rationally connected to the job or function being performed? (ii) Did the CF adopt its standard in good faith? (iii) Is the standard reasonably necessary to accomplish its goal such that the CF cannot accommodate Mr. Buffett and other CF members with male factor infertility without incurring undue hardship? a) The evidence of Major Weisgerber b) The evidence of BGen. Jaegar c) Will the additional cost impose undue hardship? D. Has a discriminatory practice based on disability been established, pursuant to s. 7? E. Allegation of discrimination on the basis of family status F. The Section 10 complaint G. What remedial orders are Mr. Buffett and the Commission seeking? (i) An order that the employment benefit be provided to Mr. Buffett (ii) Compensation for pain and suffering - s. 53(2)(e) of the Act (iii) Interest (iv) An order that the CF cease its discriminatory practice (v) Sensitivity training I. FACTS A. Mr. Buffett's complaint [1] The Complainant, Terry Buffett, is a member of the Canadian Forces (CF). He holds the rank of Warrant Officer. He alleges that the CF denied him an employment benefit by refusing to grant him funding for a reproductive medical procedure (in vitro fertilization). He claims that this refusal constituted adverse differential treatment based on his disability (male factor infertility), his sex, and his family status, in breach of s. 7 of the Canadian Human Rights Act. He also alleges that the CF's refusal was made in furtherance of a discriminatory policy, contrary to s. 10 of the Act. [2] The CF, for its part, contends that discrimination was not a factor in its decision to refuse funding. The CF provides publicly funded health care coverage to its members only. The medical procedure in question would have to be performed on Mr. Buffett's wife, who is not a member of the CF. He is therefore not entitled to receive funding for this procedure under the CF's health plan. [3] For the reasons set out below, I find that Mr. Buffett's complaint is substantiated. B. Why did Mr. Buffett require funding for the reproductive procedure? [4] Mr. Buffett is 44 years of age. He enrolled in the CF in 1979. He has been married to his wife, Rhonda Buffett, since 1985. She is now 45 years old. The couple had problems conceiving, so they sought the assistance of professionals in the field of fertility. In 1995, Mr. Buffett was diagnosed with male factor infertility. He was found to have a low sperm count with below normal motility in the sperm. The morphology (i.e. the form and structure) of the sperm was also determined to be well below normal. [5] Mr. Buffett underwent a medical procedure known as varicocele embolization in July 1995 in an effort to improve the sperm quality. The procedure is intended to treat a dilated vein around the testicle, the presence of which may affect sperm parameters. Follow-up semen analyses of Mr. Buffett, however, showed only mild improvement in sperm motility, morphology and count. In February 1996, Dr. Mark Nigro, who is Mr. Buffett's urologist and an expert in male factor infertility, recommended the use of advanced reproductive technologies, namely in vitro fertilization (IVF) and intra-cytoplasmic sperm injection (ICSI), as the next logical step in the couple's efforts at conceiving a child. C. What are IVF and ICSI? [6] IVF is the process by which a woman's eggs are fertilized in a dish and then placed in her uterus. The first stage of the process (or cycle) involves the woman giving herself injections of a medication, over a period of 10 days, to stimulate her ovaries and mature several of her eggs and egg sacs (follicles). An ultrasound is conducted every 2 to 3 days to monitor the growth of the eggs in her ovaries. When at least three follicles of a certain size develop, the woman self-injects a drug that causes the eggs to advance to a final stage of maturation. Thirty-six hours later, the woman undergoes a procedure known as transvaginal egg recovery. The woman is sedated, and a needle is passed into the ovary. The eggs are removed from the follicles. The eggs are then combined with the sperm (comprised of about 6,500 individual sperm) in an incubated dish. They are allowed to join (fertilize) naturally. The eggs are checked daily and if fertilization occurs, a catheter is used to place the resulting embryos into the woman's uterus three to five days after the fertilization. If menstruation does not occur within 17 days thereafter, a pregnancy test is conducted. [7] When the sperm used contains too few normal, motile sperm, IVF has proven to have very little success, ranging from 4 to 6 percent. Dr. Nigro testified that reproductive endocrinologists do not recommend IVF alone where there are abnormalities in the sperm. In these cases, a combination of IVF and ICSI is the preferred course. In this procedure, normal-looking, active sperm are isolated from the sample provided by the man. Using a microscope and a delicate micromanipulation needle, one of these isolated sperm is injected directly into the egg. Thereafter, the same IVF process of incubation and transfer of embryos to the woman's body is employed. [8] Dr. Arthur Leader, a professor of obstetrics, gynaecology and medicine (endocrinology) at the University of Ottawa, testified as an expert in reproductive endocrinology and infertility. He explained that it takes a team of up to 30 people to conduct one cycle of IVF treatment. The cost is therefore not insignificant. Dr. Leader estimates the current cost for IVF at about $5,500-$6,000 per cycle, and an additional $1,100 to $1,300 per cycle if ICSI is also used. He noted that the cost in 1997, shortly after the procedure was first recommended to the Buffets, was about $3,000 per cycle of IVF and an additional $1,500 per cycle of IVF with ICSI. Dr. Nigro's estimates of current costs for the procedures were similar to Dr. Leader's ($6,000 per cycle of IVF and an additional $1,500 per cycle of IVF with ICSI). [9] Dr. Leader does not generally recommend more than three cycles of IVF or IVF with ICSI treatment for his female patients, who are on average 35 years of age. With women who are well into their 30's or older, research has shown that unless pregnancy is achieved within three attempts, it is unlikely the procedure will ever be successful. [10] According to Dr. Leader, with the introduction of ICSI, the pregnancy rate when using poor quality sperm has now reached the same level as that for standard IVF performed with normal quality sperm, about 30% per cycle. [11] A child is born in about 30% of cases where an embryo is implanted in the woman. This rate drops as the age of the woman, or the man who provides the sperm, increases, due to an increased risk of miscarriage, particularly after age 40. Dr. Leader indicated that IVF and IVF with ICSI are not recommended for women over 42. He testified that there are no recorded instances of women over age 43 undergoing a successful treatment. D. Do provincial health care plans fund IVF and IVF with ICSI treatments? [12] When Dr. Nigro made his recommendation for the IVF with ICSI treatment, Mr. Buffett was stationed at Canadian Forces Station Aldergrove in British Columbia. The Buffetts were therefore residing in that province at the time. In 1996, Mr. Buffett was transferred to the CF base in Gagetown, New Brunswick, where the couple took up new residence. The government-run health care plans of both British Columbia and New Brunswick did not pay for the cost of IVF treatments. In fact, none of Canada's provincial health plans have ever funded IVF treatments, with the sole exception of Ontario. [13] Until 1993, the Ontario Health Insurance Plan (OHIP) paid for the cost of IVF treatment for women, irrespective of the cause of the infertility necessitating its use. In 1993, Ontario de-listed IVF as an insured service except in situations where both of the woman's fallopian tubes were obstructed, known as bilateral fallopian tube obstruction. [14] No provincial plan has ever paid for the cost of IVF with ICSI. However, all provinces cover the cost of testing in relation to fertility issues. [15] Thus, any persons seeking IVF and IVF with ICSI treatments who reside outside Ontario, and any Ontarians seeking these treatments other than persons with bilateral fallopian tube obstruction, will be required to pay for these fertility procedures. Dr. Leader testified that the procedures are usually conducted in private clinics, of which there are 24 across the country. E. The CF's health care plan [16] Canada's system of publicly funded health insurance is, by virtue of the Constitution Act, 1867, a matter of provincial jurisdiction. The Government of Canada contributes, however, to the cost of providing health services in every province, subject to certain criteria and conditions, as set out in the Canada Health Act, R.S.C., 1985, c. C-6. One of these conditions is that any resident of a province shall be considered an insured person under that province's health plan, with the exception of certain designated classes of persons. Members of the Canadian Forces form one of these exempt classes of persons (s. 2). Accordingly, they do not receive health care coverage under any of Canada's provincial health care plans. [17] To ensure that its members are not deprived of publicly funded health care coverage, the CF has assumed the responsibility of providing health care to its members. According to Chapter 34 of the Queen's Regulations and Orders (QR&O), issued pursuant to s. 12(2) of the National Defence Act, R.S.C., 1985, c. N-5, the CF must provide medical care, at public expense, to its members. The medical care provided encompasses medical and surgical treatment, diagnostic and investigative procedures, hospitalization, preventive medicine procedures, patient transportation, and the supply and maintenance of prosthetic appliances (art. 34.01 of the QR&O). In effect, the CF provides health care to its members on a scale similar to provincial health care plans. The scope of coverage under the CF's plan could be viewed as being even broader than that typically found under provincial plans. For instance, the CF provides full pharmaceutical coverage, as well as coverage for physiotherapy, social work and dental care. The plan is so comprehensive that some have described it as the 14th health services plan of Canada, after those of the ten provinces and three territories. [18] The Canadian Forces Health Services (CFHS) is a group operating within the CF as the designated provider of medical services to CF members. The CFHS has developed a large infrastructure for the delivery of services inside and outside Canada. The CFHS contains a core of uniformed medical professionals, including general physicians, specialists, nurses, pharmacists, administrators, social workers, medical assistants, and medical technicians. In addition, the CF employs a number of civilian medical experts on a contractual basis to provide care for its members. [19] Where it is necessary for a CF member to utilize the services of a civilian medical professional, the civilian health care provider submits an invoice to the CF for payment of the services provided. Thus, for instance, in Mr. Buffett's case, a CF physician employed at the Base Hospital located at Canadian Forces Base Chilliwack referred him to Dr. Nigro, who is a Vancouver-based specialist. Dr. Nigro is not employed by the CF. He billed the CF for his professional services, including the costs relating to Mr. Buffett's treatment and testing. [20] Brigadier-General Hillary Frances Jaeger testified at the hearing with respect to the CF's health care plan. She is the CF's Surgeon-General, with responsibilities that include looking after professional standards and ethics, assigning duties amongst medical staff, and developing clinical policy. She described her role as being analogous to that of a Chief of Medical Staff of a typical civilian hospital. She explained in her testimony that the CF's health plan has two principal goals. The first is to provide a degree of health care to CF members that is roughly comparable to that to which they would have been entitled were they not CF members. The second goal is to ensure that members are as operationally fit as they can be, in order to perform their duties at the level expected of them by the CF. F. Does the CF provide any health services to persons like Rhonda Buffett, who are family members of CF members? [21] The CF does not generally provide publicly funded health care to families of CF members. Pursuant to art. 34.23 of the QR&O, medical services may be provided to dependents of CF members (i.e. their spouses or children) in certain exceptional circumstances, such as in the case of an emergency, or where the dependents accompany the CF member to locations where adequate civilian medical facilities are unavailable, like Goose Bay, in Newfoundland and Labrador, for example. Given the relatively small size of that community and its geographic isolation, the dependents of CF members stationed there routinely receive health care from the CFHS. These family members are residents of Newfoundland and Labrador while living at the base, so the CF bills the cost of the health services provided to them directly to the province's health care plan. [22] Aside from these exceptional circumstances, dependents of CF members must access insured health services through the provincial government of the province in which they reside. Family members of CF members are, however, eligible for supplemental third party insurance coverage through the Public Service Health Care Plan (PSCHP). The PSHCP is an employer sponsored medical insurance plan that all CF members are eligible to join, and which offers additional coverage of medical services for their family members. The plan is funded through contributions from the employer and the CF Members. The plan provides additional partial insured coverage for services not covered under provincial health care plans, such as prescription drugs, dental work and eyeglasses. Mr. Buffett has purchased this coverage for Ms. Buffett. G. Does the CF's health care plan fund IVF or IVF with ICSI treatments for CF members? [23] Until 1997, the CF's health care plan did not fund IVF and IVF with ICSI treatments. This policy changed in September 1997. A female CF member stationed in Ontario had requested reimbursement for the cost of her IVF treatment, claiming that as a civilian residing in Ontario, she would have been entitled to have the procedure paid for at public expense. She argued that it was unfair for the CF's health care plan to have a policy that was more restrictive than that applied by the corresponding provincial health care plan, namely OHIP. [24] The CF member's funding request was initially turned down, so she filed a grievance, which was ultimately successful. The funding was awarded to her. Thereafter, the CF expanded its list of insured procedures to include IVF treatments. The CF takes several factors into account before expanding its list of insured services to add a particular health service. One of these factors consists of the availability of funding under provincial health plans for the service in question. As BGen. Jaeger explained, this is to ensure that members of the CF do not become disentitled to health services that would otherwise be available to them, merely because they happened to join the CF. [25] According to BGen. Jaeger, this factor was a principal reason for the CF's decision to add IVF treatment to its list of insured services. The grievance brought to the fore the fact that OHIP was already funding this treatment in certain specific circumstances (bilateral fallopian tube obstruction). The CF amended its policy to provide equal coverage to its members. [26] Details about this change in the CF's policy were made known to health care providers in the CF, by way of a message in writing that was circulated by the Chief of Health Services at National Defence Headquarters, on September 15, 1997. The message stated that IVF procedures were now authorized and could be approved at unit level if IVF had been recommended by a reproductive technology specialist. A maximum of three sessions would be funded, which accords with OHIP's policy as well. Interestingly, the message did not specify whether funding of the treatments would be restricted to patients with bilateral fallopian tube obstruction, as was the case under OHIP's post-1993 policy. H. What steps did Mr. Buffett take when he learned of the change in CF's policy? [27] Shortly after Dr. Nigro suggested, in February 1996, that the option of IVF treatment with ICSI be explored, Mr. Buffett met with a CF physician to discuss the matter. The CF physician informed Mr. Buffett that the CF's health plan did not provide any funding for this procedure. At the time, the Buffets were residing in British Columbia. Later that year, they moved to New Brunswick. Since the provincial health plans of both provinces did not fund the procedure, the couple could only have obtained it by paying for it themselves. They decided that they just could not afford the expense and resigned themselves to the likelihood that they would never have any biologically related children. [28] Their expectations changed dramatically, however, when one of Mr. Buffett's acquaintances, who was a CF medic serving at CFB Gagetown, forwarded to Mr. Buffett a copy of the message that National Defence Headquarters had circulated in September 1997, announcing the change in policy regarding funding for IVF treatments. With this news in hand, Mr. Buffett contacted a CF physician on the base and made a formal request for funding. The request was forwarded to the base surgeon, who refused to grant it. The grounds given for the refusal were that IVF is only provided in one province (i.e. Ontario), and that the funding was available only with respect to bilateral tubal obstruction. [29] On November 10, 1998, Mr. Buffett filed a grievance contesting this decision. He noted that the original message from National Defence Headquarters announcing the change in policy did not mention that coverage was restricted to patients with bilateral fallopian tube obstruction. He argued that this restriction was discriminatory, based on gender. Male CF members were being effectively denied benefits that female members were receiving, since men could not physiologically have tubal diseases. [30] In accordance with CF procedure, Mr. Buffett's grievance was reviewed and commented upon by his superior officers at various levels. The authority to grant the redress being sought, however, ultimately rested with the Chief of Defence Staff. Some of Mr. Buffett's superior officers who reviewed his grievance endorsed his claim. His commanding officer, Lieutenant-Colonel J.M. Duhamel wrote, on November 30, 1998, that Mr. Buffett's argument had merit, adding that basing eligibility for publicly funded IVF on a condition applicable solely to female soldiers amounts to excluding male soldiers on the basis of gender. [31] A similar position was adopted by BGen. D.W. Foster, Commander of Land Force Atlantic Area, in his subsequent review of the grievance. He found that Mr. Buffett's point of dual standards is well-taken, adding that he believed in all fairness that IVF should be offered to Mr. Buffett as it would to a female member's family. [32] Others disagreed. Lieutenant-General W.C. Leach, Chief of Land Staff, for instance, did not view the issue as being a matter of gender equality, but rather simply a medical reality that only women can have fallopian tube obstruction. In his opinion, the purpose of the CF policy of funding IVF for servicewomen was to address that condition and nothing else. [33] While the review of Mr. Buffett's grievance was progressing up through each of the various levels, a noteworthy development took place regarding the CF's health care policy. Until December of 1998, the only way to determine if a given medical procedure was covered by the CF's health plan was to consult the numerous messages that were sent from National Defence Headquarters, like the one circulated in September 1997 regarding IVF treatments. Some medical officers had taken to organizing the messages in binders, in order to assist them in making such determinations. To better enable CF members to understand the scope of the coverage to which they were entitled, the CF released its Spectrum of Care policy on December 21, 1998. The Spectrum of Care was essentially a compilation, in a single document, of the various health services decisions and messages issued over the years. [34] In the process of putting together the Spectrum of Care, the CF took the opportunity to clarify certain ambiguities regarding the services covered. BGen. Jaegar acknowledged in her evidence that there may have existed some ambiguity in the message that National Defence Headquarters had circulated in September 1997 setting out the restrictions associated with the funding of IVF treatments. Therefore, the Spectrum of Care now explicitly stated that funding for IVF treatments would only be provided, if the infertility was the result of fallopian tube obstruction, for a maximum of three cycles, and to serving members of the CF, not to their civilian dependents, spouses or partners. These requirements had not been mentioned in the September 1997 message. BGen. Jaegar hastened to add in her evidence, however, that while the original message that was circulated may have lacked these details, one aspect of the policy was always clear: Pursuant to Chapter 34 of the QR&O, only serving CF members are entitled to CF's health care benefits. She pointed out that this is an order set down from the highest level (i.e. the QR&Os), which trumps all others. [35] In June 2000, Mr. Buffett's grievance was referred to the Canadian Forces Grievance Board (CFGB) to review and provide findings and recommendations to the Chief of Defence Staff, in accordance with art. 7.12 of the QR&O. The CFGB released its findings and recommendations on April 4, 2001. It recommended that the grievance be denied, noting that dependents of CF Members are not generally covered under the CF's health policy and that the refusal of Mr. Buffett's IVF funding request was in accordance with the policy. The CFGB found that the lack of access to IVF coverage for most members of groups other than those specified [in the policy] may be discriminatory under the Canadian Charter of Rights and Freedoms. But the CFGB went on to find that the restricted access to funding in this area was justified as a reasonable limit, under s. 1 of the Charter. [36] On January 30, 2002, the Chief of Defence Staff, General R.R. Henault, issued his findings regarding Mr. Buffett's grievance. Gen. Henault stated that he concurred with the essence of the CFGB's findings and that therefore, he did not support Mr. Buffett's application for redress. [37] On May 23, 2002, Mr. Buffett filed his human rights complaint in which he alleged that he had been discriminated against, under s. 7 of the Act. He amended his complaint on February 3, 2004, to add the allegation that the CF had applied a discriminatory policy, within the meaning of s. 10 of the Act. II. ANALYSIS A. What must Mr. Buffett demonstrate to establish discrimination in this case? [38] Complainants in human rights cases must first establish a prima facie case of discrimination. A prima facie case is one that covers the allegations made and which, if the allegations are believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent (Ontario Human Rights Commission v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536 at para. 28 (O'Malley)). In the present case, the Commission and the Complainant must establish that: in denying him funding for the IVF treatment, the CF differentiated adversely in relation to Mr. Buffett on a prohibited ground, in the course of his employment (s. 7), or in deciding not to fund this treatment, the CF established or pursued a policy or practice that deprived or tended to deprive Mr. Buffett or a class of individuals, of an employment opportunity on a prohibited ground (s. 10). For the purposes of the Act, members of the CF are deemed to be employed by the Crown (s. 64). [39] Once the prima facie case is established, it is incumbent upon the respondent to provide a reasonable explanation for the otherwise discriminatory practice (Lincoln v. Bay Ferries Ltd., 2004 FCA 204 at para. 18). An employer's conduct will not be considered discriminatory if it can establish that its refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is based on a bona fide occupational requirement (BFOR) (s. 15(1)(a) of the Act). For any practice to be considered a BFOR, it must be established that accommodation of the needs of the individual or class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost (s. 15(2) of the Act). B. Has a prima facie case of discrimination based on sex pursuant to s. 7 of the Act been established? (i) Mr. Buffett's and the Commission's position [40] According to Mr. Buffett and the Commission, it is clear that the CF's health care plan adversely differentiates against him and other men with male factor infertility who are members of the CF, on the basis of sex. The plan provides coverage for IVF treatments to its female members with bilateral obstruction of their fallopian tubes, a uniquely female form of infertility. At the same time, the plan denies coverage to Mr. Buffett, a male CF member with male factor infertility. [41] The Commission and Mr. Buffett submit that the medical services provided under the CF's health care plan constitute an employment benefit for CF members, which must be offered to all members in a substantively equal and non-discriminatory manner. As was stated by the Supreme Court in Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219 at para. 34, once an employer decides to provide an employee benefit package, it cannot make exclusions from such schemes in a discriminatory fashion. (ii) The CF's position [42] The CF contends that the benefit in question is, in fact, provided in a non-discriminatory fashion to its members. Since CF members are excluded from coverage under provincial and territorial health care plans, the CF has established its own program to provide publicly funded health care to its members only, not to their families. The CF does not have a legislative mandate to provide medical coverage for non-members and, pursuant to art. 34.23 of the QR&O, medical services may be provided to dependents (spouses and children) but only under certain exceptional circumstances, such as in emergencies or at remote locations. These services are eventually billed back to the non-members' provincial or territorial health care plans. Thus, they are not truly funded by the CF. [43] The CF points out that IVF and IVF with ICSI are medical procedures that enable a woman to become pregnant. Aside from the sperm that is provided by the male partner, the procedure solely involves the woman. OHIP (the only provincial health care plan that funds the procedure) bills the treatment against the woman's health insurance number, not the male partner's. In Mr. Buffett's case, when it became evident that IVF treatment with ICSI was the next available option for the couple, Mr. Buffett's urologist, Dr. Nigro, ceased dealing with the matter. Instead, Dr. Nigro advised the couple to consult with Ms. Buffett's reproductive endocrinologist about the possibility of obtaining IVF treatment with ICSI. Mr. Buffett acknowledged in his testimony that although he accompanied his wife on her visits to her endocrinologist, he was never that physician's patient. [44] Dr. Leader testified that before commencing treatments, he usually meets with both partners. He needs to be familiar with any allergies that the male partner may have. He must also test the man's semen. It could be infected, in which case he would have to prescribe treatment before proceeding any further. Dr. Leader referred to infertility as a couple problem. He noted, however, that despite the male partner's participation, it is ultimately only the woman's consent that is required before initiating the treatments. [45] The CF therefore argues that the evidence is clear: IVF treatment, with or without ICSI, is a medical service that is received exclusively by a woman. In the present case, the woman who would be receiving the medical service being sought by Mr. Buffett is his wife, who is not a member of the CF. As a non-member, she is not eligible under the CF's health care program for coverage of her treatment. The distinction being made in the provision of the medical service is based on whether or not the recipient is a member of the CF, not on the basis of his or her sex. (iii) A comparative analysis [46] The CF submits that in assessing whether a discriminatory practice has taken place, within the meaning of s. 7, a comparative analysis should be conducted, the outcome of which must demonstrate differential treatment compared to another relevant group. [47] I am prepared to accept that in the context of this complaint and the manner in which the allegations have been framed, conducting a comparison between relevant individuals or groups is helpful in determining whether a prima facie case of adverse differential treatment has been established. As the Federal Court of Appeal noted in Morris v. Canada (Canadian Armed Forces), 2005 FCA 154 at paras. 23 et ss., the legal test for establishing a prima facie case of discrimination is flexible and will vary depending on the fact patterns of each case. In the present case, Mr. Buffett has alleged that the CF treated him differently than female CF members who have a form of female-factor infertility. Accordingly, a comparison between him and his female colleagues would be appropriate and instructive. [48] It is necessary to identify the appropriate comparator in order to be able to determine the existence of any differential treatment, as well as the grounds for the distinction (McAllister-Windsor v. Canada (Human Resources Development) (2001), 40 C.H.R.R. 48 at para. 40 (C.H.R.T.)). In defining the comparator group, one must take into account the purpose of the scheme that confers the benefit in issue (Battlefords and District Co-operative Ltd. v. Gibbs, 1996 S.C.R. 566 at para. 33). [49] According to the CF, the purpose of its health care plan is to provide medical care to CF members. The CF suggests that Mr. Buffett should be compared to female members who would be seeking fertility treatments for their non-member spouses or, in the alternative, to male and female members seeking treatment for their spouses with respect to non-fertility related conditions. In either case, the outcome of the comparison would be the same; the non-member spouses would not be entitled, under any circumstances, to receive publicly funded medical services from the CF. Regardless of the gender of the spouse, the nature of the condition, or the type of treatment sought, coverage for medical treatment of spouses is not permitted. Mr. Buffett was therefore not treated any differently under the health plan than any other CF members, male or female. The distinction in coverage is made on the basis of membership in the CF, which is not a prohibited ground under the Act. [50] The CF contends, in addition, that if any distinction is being made between men and women under its health care plan, it is a distinction based solely on biological differences between the two sexes. It is only a woman who is physically able to become pregnant. Therefore, providing funding to women only, for a treatment that causes pregnancy, cannot be discriminatory. Conversely, the CF health plan funds comparable fertility treatments for men in accordance with their physiological realities. An example from the present case would be the CF's funding of Mr. Buffett's varicocele embolization, which would have reversed his male factor infertility, had it been successful. The CF submits, therefore, that the limitation it has set on funding for IVF recognizes the biological reality that only women can receive the treatment and become pregnant. The policy is not, as a result, discriminatory. [51] I disagree. In my view, a distinction can be drawn between procedures that reverse infertility and procedures that induce or assist conception. Procedures that are intended to reverse a person's infertility are clearly medical procedures that are performed exclusively on that person. This would include, for instance, surgery to reconstruct a woman's obstructed fallopian tubes. According to Dr. Leader, this was a procedure that was opted for quite readily in the past, prior to the development of advanced reproductive technologies. The varicocele embolization procedure that Mr. Buffett underwent would constitute another example of these types of medical procedures. [52] IVF and ICSI, on the other hand, are entirely different in nature. These treatments do not reverse the patient's male or female factor infertility. Instead, the treatments offer the couple the opportunity to conceive and have a child that is biologically theirs, irrespective of who has the infertility problem. As Dr. Nigro stated in his evidence, you don't use IVF unless you want a baby. In my view, the CF has construed the facts of this case too narrowly. The CF takes the position that since nearly all aspects of the IVF and IVF with ICSI treatments involve the woman, they are medical procedures that only relate to her. But this fails to take into account the fact that assisted conception procedures are different from all other medical procedures, including procedures to reverse infertility, in that by biological necessity, two individuals must be involved. [53] The CF's health care policy is structured in such a way as to provide the female member who has a form of female factor infertility with a publicly funded service that will afford her the opportunity to have a child. Physiologically, this procedure can only be completed with the contribution of a person of the opposite gender. The CF funds the service for the female member, even if the opposite-gender contribution comes from a non-member of the CF. On the other hand, the CF does not provide the equal benefit to a male member with male factor infertility, merely because the contribution from the opposite-gender non-member is much more medically complex. And yet, the same physiological reality exists that conception can only occur with the participation of both partners. [54] This reality is a key factor in making an appropriate comparison in this case. The fact is that IVF is not merely a medical procedure that is being offered to female CF members. These women are being given a real opportunity to have a child. That is the essential purpose of this treatment. In my view, given this context, the proper comparative question to pose is, does the CF offer the same benefit to its male members with infertility problems that it is offering to its female members with infertility problems? [55] The answer is clearly no. It does not matter that the CF's original motivation for adding IVF treatment to its list of medical services for its female members who have a certain medical condition, was so as to ensure that the coverage provided under its health care plan was equal to that of a provincial scheme (in this case, OHIP). Considering the policy's true purpose and its effect, the result is that Mr. Buffett is denied a benefit that is at the same time being provided to female CF members, i.e. access to assisted conception by IVF. As such, the treatment is unequal. [56] The CF points out that since Mr. Buffett cannot benefit from the standard IVF procedure, he cannot claim to have received unequal treatment from the CF. While standard IVF will assist women with bilateral fallopian tube obstruction to become pregnant and have children, IVF alone would be of virtually no assistance to men like Mr. Buffett who have severe male factor infertility. The pregnancy rate in these instances is no higher than 6%. Dr. Nigro and Dr. Leader both testified that standard IVF is not recommended in such cases. Consequently, the CF contends that its female members with bilateral fallopian tube obstruction are not receiving a benefit that is being unfairly denied to male members. These men would not stand to gain any benefit from standard IVF treatment, so they are not being denied anything in effect. [57] Mr. Buffett indicated to the Tribunal at the hearing that he was willing to accept funding for standard IVF treatment for himself and his wife, even if it afforded them only a minimal possibility of achieving a pregnancy. In my view, however, this assertion does not help to advance the analysis of this case. While Mr. Buffett may be willing to accept any attempt made in the hope of having a child, the medical evidence before me is clear; IVF alone is medically impractical at achieving this result for a person with his condition. Both experts said that they would not recommend the treatment in Mr. Buffett's case. It would be a futile effort. [58] Mr. Buffett could only achieve the result he seeks through treatments of IVF with ICSI. According to the CF, if these treatments are to be funded, Mr. Buffett would in effect receive an additional benefit that is not available to any other CF members, whether male or female. Indeed, not a single publicly funded health plan in the country offers coverage for IVF with ICSI. If Mr. Buffett was successful in his claim, therefore, he would be obtaining coverage that is more than equal to that which is available to women CF members. [59] However, equal treatment does not always mean identical treatment (see Weatherall v. Canada (Attorney General), [1993] 2 S.C.R. 872). Occasionally, a different treatment may be called for in order to achieve substantive equality between the comparator groups. Dr. Leader's testimony is very instructive in this respect. He noted that until the ICSI technique was developed, there existed a wide gap in the effectiveness of IVF between cases of female factor and male factor infertility. With the introduction of ICSI, the pregnancy rates with respect to both forms of infertility were normalized to a level of about 30% per cycle. [60] Thus, in order for male CF members to receive a benefit that is equal to the benefit being offered to female members with bilateral fallopian tube obstruction, IVF treatments with ICSI would need to be made available to them. Of course, I am mindful of the increased costs associated with ICSI (ranging from $1,100 to $1,500, according to the expert witnesses). In my view, however, it is more appropriate to take these additional costs into account at a later stage, during the undue hardship analysis that is conducted in assessing CF's justification for its policy. [61] Counsel for the CF suggested in her final submissions that the inequality created by offering publicly funded IVF with ICSI treatments to male members is akin to providing them gold standard service that would be unavailable to female members. Women would also benefit from the addition of ICSI to their IVF treatments as the additional procedure would assure them of a pregnancy. With respect, I did not find any evidence to this effect anywhere on the record in this case. On the contrary, the only discussion regarding this matter came up in Dr. Leader's testimony, in which he indicated that ICSI levels the playing field, so to speak, between male and female factor infertility. He did not indicate that women would gain any benefit from having ICSI added to their standard IVF treatments, where the sperm used is normal. [62] To sum up, in my opinion, the Commission and Mr. Buffet have adduced evidence demonstrating that an adverse differentiation was made between Mr. Buffett and his female colleagues, on the basis of his sex. A prima facie case of discrimination has therefore been established. C. Does the CF have a reasonable explanation for its otherwise discriminatory practice? [63] As I mentioned earlier, once the prima facie case is established, the onus then shifts to the respondent to provide a reasonable explanation. In this particular case, the CF must demonstrate that its refusal to provide Mr. Buffett with the employment benefit at issue (funding for the IVF treatment with ICSI) was based on a BFOR (s. 15(1)(a) of the Act). To do so, the CF must establish that accommodating his needs or the needs of the class of individuals like him would impose undue hardship on the CF, considering health, safety and cost (s. 15(2) of the Act). [64] The Supreme Court has articulated a three-step approach to be followed in determining whether a BFOR has been established (see British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U., [1999] 3 S.C.R. 3 (Meiorin); and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 (Grismer)). A respondent may justify the impugned standard by proving, on the balance of probabilities, that: The respondent adopted the standard for a purpose or goal that is rationally connected to the job or function being performed; The respondent adopted the particular standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate purpose or goal; The standard is reasonably necessary to the accomplishment of that purpose or goal. To show that the standard is reasonably necessary, the respondent must demonstrate that it is impossible to accommodate the complainant or persons with the complainant's characteristics without incurring undue hardship. It is incumbent on the respondent to show that it considered and reasonably rejected all viable forms of accommodation. (i) Did the CF adopt its policy for a purpose or goal rationally connected to the job or function being performed? [65] The CF submits that the standard or policy at issue in the present case is rationally connected to the goals and purposes of the CF's medical coverage under its health care plan. Its policy on fertility treatment was changed to include IVF coverage for female CF members with bilateral fallopian tube obstruction for the purpose of ensuring that members within the CF received the same level of care as non-members covered by provincial plans, namely OHIP. [66] I accept that the CF's policy was rationally connected to its goal of satisfying its obligations to provide publicly funded health care to its members that is equal to the level of health care available under Canada's provincial health care plans. The first step of the defence has been established. (ii) Did the CF adopt its standard in good faith? [67] I am satisfied that the CF adopted its policy in good faith. Its intention was to match the level of health services available under the provincial health plan in Ontario. The decision was taken following a successful grievance filed by a female CF member residing in Ontario. Rather than treat the grievance as specific only to that member's case, the CF opted to modify its policy and effectively extend the redress of that grievance to other members as well. In my opinion, these actions were clearly taken in good faith. The second step of the defence has been established. (iii) Is the standard reasonably necessary to accomplish its goal such that the CF cannot accommodate Mr. Buffett and other CF members with male factor infertility without incurring undue hardship? [68] The CF contends that the financial impact of changing the level of health coverage would be significant and would affect its ability to offer medical services to its members. Considering the cost involved, the CF submits that funding IVF treatments with ICSI would impose undue hardship on the CF. [69] Commodore Margaret Kavanagh is the Commander of the CFHS and Director General of Health Services. She testified that the CFHS receives its funding from the Department of National Defence. The sum provided in 2004-05 was $270 million of which approximately $193 million was spent on direct patient care or service delivery, which would include performing operations, buying health services from the civilian sector, and purchasing drugs. The remainder went to operational costs such as the training of staff, technology support, comptrollership, and other matters relating to overhead. The $270 million budget, however, excludes the cost of salaries for the CFHS's full-time health professionals and other staff. These costs are subsumed in other CF budgets. When all of the costs are put together, the CF's total budget for the delivery of medical care totals over $700 million. [70] Cmdre. Kavanagh testified that if the CFHS was required to fund IVF treatments or other procedures that cost a significant amount of money, the level of services available would be affected. She pointed out that the CFHS's funding is not a bottomless pit and consequently, some choices would have to be made on what could be funded. Medical treatments would not likely be removed from the list of available services for members, but training for health care professionals might have to be reduced. She added that even if the Department of National Defence increased the CFHS funding to cover the additional costs for IVF treatments, it would result in fewer funds being made available for the operational budgets of the CF. [71] In the CF's submission, the evidence before the Tribunal demonstrates that the change in policy being sought by the Commission and Mr. Buffett would impose a significant additional cost on the CF, which in turn would have a direct and detrimental impact on the services that the CF is able to provide. Tough decisions based on the resulting financial restraint would have to be made and would diminish other current areas of funding. According to the CF, this impact would cause it undue hardship. a) The evidence of Major Weisgerber [72] But what evidence did the CF lead regarding the actual impact of such funding? Major Chris Weisgerber was called as a witness by the CF. Until recently, he was serving within the Health Services Delivery Directorate of CFHS, Primary Care Services Section. He prepared a report documenting the financial impact of policy changes that would extend coverage for IVF treatments to all CF members and their partners in all cases. He concluded that the initial cost to the CF of such a change would be as high as $180 million. [73] Before making his calculations, Maj. Weisgerber consulted an Internet website known as myfertility.ca, which stated that the cost for IVF in 2003 was between $6,000 and $8,000 per cycle including medications. The website apparently also indicated that infertility rates are estimated to be up to 15% for couples overall. [74] Based on these figures, Maj. Weisgerber proceeded with his calculation. He estimated the number of persons eligible to receive CF health care benefits at 50,000. This number is intended to encompass the substantial Reservist population that is constantly rotating on and off contracts with the CF. He testified that to try to figure out how many uniformed CF members at one point in time would qualify for fertility services would be very difficult to do. In his opinion, however, this estimate is reasonable and conservative. Maj. Weisgerber then performed the following calculation: 50,000 eligible personnel x 15% infertility rate x $24,000 (3 IVF cycles @ $8,000/cycle) = $180,000,000. [75] In cross-examination, Maj. Weisgerber acknowledged that his estimate was based on a worst-case scenario. I find that there are several significant flaws in Maj. Weisgerber's analysis, which in my view render the report of little value in determining the potential impact on CF of a change in the policy. [76] First of all, it is assumed that each IVF treatment will require three cycles. The medical expert evidence before me is clear, however, that there is a good possibility of a woman's becoming pregnant from her very first cycle of IVF treatment. The average rate of pregnancy per cycle of IVF is about 30%, according to Dr. Leader. Thus the cost per couple will probably turn out to be significantly less than the $24,000 proposed by Maj. Weisgerber. There is, in fact, some indication to this effect in a table that he incorporated in his report, which documents the professional fertility fees paid by the CF to treat its female members who were already eligible for standard IVF treatments and had received funding under the existing policy, between 2001 and 2005. The average cost per year to treat each person appears to have varied between $3,375 and $5,738. These sums are significantly lower than those employed by Maj. Weisgerber in his report. These figures do not include the cost of medications, ancillary investigation costs, travel costs, or work productivity costs, but in the case of non-member spouses, many of these items would be covered by their provincial health plans or their third party insurer (e.g. the PSHCP). It is not evident that any portion of the cost for these items would be borne by the CF, and certainly no evidence was led by the CF detailing what these additional items would cost to the CF. [77] In addition, Maj. Weisgerber relied on data that is not contemporaneous with the date of the alleged discriminatory practice. He assumed that the cost of each cycle of IVF treatment in 2003 would be $8,000, a figure that he found on an Internet website. Yet, Mr. Buffett's complaint relates to the CF's denial of his funding request that occurred five years earlier, in 1998. Dr. Leader's evidence was to the effect that in 1997, the cost per cycle of IVF treatment was about $3,000. [78] Furthermore, Maj. Weisgerber has assumed in his calculations that every couple with an infertility problem will opt for IVF treatment. It is unrealistic, however, to take it for granted that all persons with this condition will want to have a child, or one that is biologically related to them. For instance, not all women may be willing to undergo the treatment, even if it was fully funded by the health care plan. The procedure involves the woman self-injecting herself for days with medications that Dr. Leader characterized as very potent. The eggs must be physically removed from her and the embryos must be subsequently placed into her uterus with a catheter. Dr. Leader described this procedure as an emotional roller-coaster for the woman. He explained that there are certain physical risks involved with the procedure (e.g., an over stimulation of the ovaries; haemorrhaging, bacterial infections). The likelihood of these physical risks is fairly low, but the emotional risk to the patient can be significant. If she does not become pregnant after having made such a physical and emotional investment, it can be quite devastating psychologically for her, according to Dr. Leader. Given these risks and other considerations, it is far from certain that every woman with access to full public funding for this procedure will opt for it nonetheless. [79] In addition, as the evidence of both Dr. Nigro and Dr. Leader indicated, there are several options available to achieve pregnancy other than advanced reproductive procedures. For instance, some men may manage to resolve their infertility problems with varicocele embolization, which is already funded under the CF's health plan and provincial health plans. In other cases, where the sperm has relatively few abnormalities, a couple may successfully conceive a child through the use of artificial insemination, the cost of which is also covered by the CF's health plan and provincial health plans. Dr. Leader testified that some fertility problems can be treated with hormone treatments, administered to both men and women, or even through lifestyle changes, such as weight loss, cessation of smoking, and the elimination of certain occupational hazards. [80] Thus, it has not been established that every couple who experiences infertility will inevitably seek IVF treatments. [81] Maj. Weisgerber's estimate seems to also presuppose that every couple will request IVF treatments at once, within the first year of the change in policy. This is highly improbable. As Cmdre. Kavanagh testified, whenever the CFHS changes a policy, not every possible beneficiary of the change immediately claims the service. She stated quite candidly that I am not going to have to suddenly spend $180 million if we change this policy tomorrow. Indeed, when the CF changed its policy to include coverage of IVF treatments for women with bilateral fallopian tube obstruction, every female CF member with this condition did not immediately request the treatment. The table from Maj. Weisgerber's report indicates that a fairly consistent number of female CF members sought this coverage from year to year. Seven women received funded treatment in the 2001-2002 fiscal year, six women in 2002- 2003, two women in 2003-2004, and seven women in 2004-2005. [82] In addition, Maj. Weisgerber has assumed, for the purposes of his calculations, that the policy would be expanded to allow all members, male and female, who are having difficulty conceiving a child with their partners, to receive funding for IVF treatments. This would include women with infertility problems that are not due to bilateral fallopian tube obstruction. In the human rights complaint, however, Mr. Buffett did not impugn the lack of access to IVF in these circumstances. Rather, he only alleged that the CF had discriminated against him and other men like him who are affected by male factor infertility. This is the only issue for which he seeks redress. [83] Finally, as Maj. Weisgerber acknowledged in his evidence, his calculations were basically guesstimates. He added that in his opinion, no one could really estimate the costs reliably, given the variables and unpredictability of the ultimate utilization of the service. He stated that therefore, the actual cost of changing the policy could be higher or lower. [84] He nuanced his comments by pointing out that he had not placed too much emphasis in his report on the costs arising from a change in the policy. He focussed more on some of the other issues associated with expanding the policy. Yet, in terms of content, most of the report is devoted to analyzing the direct financial costs to the CF. There is some slight mention made elsewhere in the report of the other issues, with respect to the indirect impact and costs. These costs would include the possibility of additional expenses relating to the supplementary maternal health and neonatal services, due to the increased complication rate associated with IVF. Maj. Weisgerber acknowledged, however, that since in cases like Mr. Buffett's, it would be a non-CF member who would be receiving these services, the provincial and territorial health plans would incur these costs, not the CF. [85] He also expressed some concern in the report about the precedent that a change in policy would set for those who might demand coverage for additional couple related services from the CF, such as family counselling. Maj. Weisgerber did not elaborate any further on the magnitude of these possible additional costs to the CF. [86] Based on all of the foregoing, I do not find that Maj. Weisgerber's report provides any reliable indication of the additional costs associated with the change in policy regarding the funding of IVF by the CF and the extent of their impact, in the circumstances impugned by Mr. Buffett. b) The evidence of BGen. Jaegar [87] BGen. Jaegar, in her testimony, recognized that Maj. Weisgerber's figures were demonstrative of a worst-case scenario, in which it was assumed that everyone who was potentially infertile would seek IVF treatment at once. She therefore undertook to come up with a figure that would be as realistic...as you are likely to get. [88] She began by taking the number of CF members who were under the age of 45. As the medical experts who testified had indicated, IVF is not recommended for persons beyond their mid-40's. Brig. Gen Jaegar then multiplied that figure by the percentage of CF members who were married, which she claims is about 67%. The product from this calculation was about 39,000 people. She then multiplied this number by the expected percentage of married persons who have fertility problems. She did not indicate in her testimony what percentage she used other than to say it was between 10 and 15 percent. She testified that the product of this calculation was 5,000 persons, which would suggest that she made this calculation using 13% as the percentage of persons with fertility problems. [89] For the next phase of her calculations, she needed an estimate of the likely uptake rate for the newly available IVF treatment. To determine this figure, she consulted the data regarding the number of women who had sought IVF under the existing policy. At the time she made her calculations, of the 9,600 female members of the CF, she estimated that 5,900 would have been under age 45, as well as married (assuming a marriage rate of 67%). Using an infertility rate at the low end of the range (10%), she concluded that there are about 600 infertile women in the CF. She asserted that in the case of 10% of those women, the infertility problem was attributable to bilateral fallopian tube obstruction, although it was not made clear where she drew this figure from. She mentioned having consulted websites on the Internet. The result therefore would be that 10% of the 600 infertile women (i.e. 60 persons) would have been entitled to receive IVF treatment under the CF's existing Spectrum of Care. [90] Maj. Weisgerber's actual figures show, however, that over the four years from mid-2001 to mid-2005, only 24 women sought IVF treatment, or an average of 6 per year, which means that only 10% of eligible women sought the treatment each year. [91] Brig. Gen Jaegar therefore applied this same 10% figure to the number of eligible members, male and female, who would be entitled to receive the IVF infertility treatment, for themselves or their partners, under an expanded policy (i.e. 5,000 eligible persons x 10% = 500 persons). She then multiplied this figure by $24,000 (i.e. three cycles of IVF treatment x $8,000). The resulting overall annual cost of expanding the CF's policy on IVF treatment would be $12 million, which BGen. Jaegar opted to pare down to $10 million to reflect the fact that her figures were so rough. [92] While this figure may be more realistic than that put forth by Maj. Weisgerber, some significant errors are repeated in BGen. Jaegar's calculations as well. She relied again upon the $8,000 estimate per cycle, which reflects the supposed cost in 2003, five years after Mr. Buffett's funding request. BGen. Jaegar also assumed, as did Maj. Weisgerber, that three treatments of IVF would be required in every case. As I discussed earlier, this is not necessarily the case, and the statistics from previous IVF treatments funded by the CF show that the average cost per member treated was about $4,800, which works out to 20% of the $24,000 figure utilized in BGen. Jaegar's calculations. If one were to discount BGen. Jaegar's estimation of the total cost by the same percentage, the annual cost arising from the change in policy regarding IVF treatments would be around $2 million. [93] Admittedly, BGen. Jaegar's calculations did not factor in the additional cost of ICSI, which on the evidence of Dr. Nigro and Dr. Leader, comes in at up to $1,500 per cycle. However, even if we were to take BGen. Jaegar's approach and assume that three cycles would be required by each of the estimated 500 persons seeking coverage annually, the impact of adding the cost of ICSI would be an additional $2.25 million to the IVF cost of $10 million. But I believe this figure to be exaggerated. At the risk of repeating myself, it is unlikely that three treatments would be required in every case. Furthermore, ICSI will not necessarily be employed in every case. BGen. Jaegar formulated her calculations based on the same assumption regarding an expanded health care policy as Maj. Weisgerber, to the effect that the policy would be expanded with regard to all CF members, male and female. Under such an expanded policy, there may be instances where female CF members with forms of female factor infertility that did not entitle them to funded IVF treatments under the existing policy, will now seek out such funded treatments. In these cases, ICSI will not be required. According to the medical expert evidence in this case, ICSI is only called upon to supplement standard IVF treatment when the male partner presents with severe male factor infertility. [94] In addition, just as in the case of Maj. Weisgerber, BGen. Jaegar appears to subsume all forms of infertility into a single group, for which IVF will be a choice that will always be opted for. Yet, as I have already explained, there may be instances where although a CF member may become eligible under an expanded policy to receive IVF treatment, other options will be pursued to help resolve the infertility issues. Thus, the annual uptake may, in fact, be less than the 500 individuals estimated. [95] In my view, therefore, CF's cost estimates, whether based on Maj. Weisgerber's figures or those of BGen. Jaeger, are unreliable. c) Will the additional cost impose undue hardship? [96] As I have just indicated, I find Maj. Weisgerber's and BGen. Jaegar's estimates of the additional costs associated with an expansion of the policy to cover IVF treatments for Mr. Buffett and others like him unreliable and exaggerated. However, even if BGen. Jaegar's more conservative figures were as realistic as she claims, what evidence is there that it would be impossible to make this accommodation for the complainant and others like him without imposing undue hardship on the CF? [97] The CFHS spent $193 million on direct patient care in 2004-05. Of this amount, $15 million was spent on all mental health services, $2 million on orthopaedic care, and $22 million on all medications. With these sums in mind, BGen. Jaeger's $10 million estimate for the cost of expanding the IVF coverage, with an additional $2.25 million for ICSI treatments, would appear to be quite significant. The CF argued that this additional expense would have a direct and detrimental impact on the services it would be able to provide. [98] But would it be impossible for the CF to absorb this additional cost without incurring undue hardship? Cmdre. Kavanagh testified that while financial considerations are a factor in decisions regarding which medical services to cover under the plan, they are not the prime reason for the decisions. The members' health care needs and well-being are the most important factors. She noted that her budget has increased at a significant but steady rate over the last few years, on average 5 to 6 percent per year, which is consistent with health care inflation. The CFHS has managed to receive the additional funding to cover its increased costs because, according to Cmdre. Kavanagh, we have proven to the organization that we need more money. [99] The effect of the increased costs associated with an expanded IVF policy on the CF's overall budget was not demonstrated in the evidence. There was no clear evidence adduced of the CF's previous or current total overall budget. Cmdre. Kavanagh testified that she did not know the exact number but that it was in the billions. She was able to confirm that the CFHS's $270 million funding represents less than 10 per cent of the CF's total budget. More importantly, the CF did not lead any evidence with respect to its funding or budgets at the time when Mr. Buffett was refused coverage for the treatment in 1998, and it is impossible to reliably assess the impact at the time of any additional costs arising from an expanded range of health coverage. [100] In my view, the evidence does not establish that it is impossible for the CF to accommodate Mr. Buffett and other male CF members with his characteristics, without incurring undue hardship. BGen. Jaegar described the $10 million estimate of additional annual costs, a sum that I have determined to be exaggerated, as being not insignificant, compared to the CFHS's spending on other forms of services. That might be the case, but it was incumbent upon the CF to prove that the additional cost would be so high as to impose undue hardship on the CF. It failed to do so. [101] For all of these reasons, I find that the CF's refusal to grant Mr. Buffett funding for in vitro fertilization constituted adverse differentiation on the basis of sex, in the course of his employment. Mr. Buffett's complaint in this respect has been substantiated. D. Has a discriminatory practice based on disability been established, pursuant to s. 7? [102] Mr. Buffett's claim that his male factor infertility constitutes a disability was not challenged by the CF. [103] The Supreme Court, in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal City and Boisbriand (City), [2000] 1 S.C.R. 665 at para. 79, noted that a handicap or disability, within the meaning of human rights legislation, may be the result of a physical limitation, an ailment, a social construct, a perceived limitation, or a combination of all of these. [104] In the present case, Dr. Leader testified that most people are hard-wired to want to have children. Infertility denies them this need. In his view, treating people's infertility is a necessary component of health care, adding that there is also a significant psychological impact on both the male and the female partner when they are unable to achieve pregnancy. Indeed, Mr. Buffett spoke in his testimony of how his infertility problem has so troubled him and his spouse emotionally, that they avoid interacting with colleagues and friends who have children. In cross-examination, Dr. Leader agreed with the proposition that infertility is an illness and a disability, pointing out that it has been so defined by the World Health Organization. [105] In light of the foregoing, I am satisfied that Mr. Buffett's infertility constitutes a disability within the meaning of the Act. [106] The reasoning that gives rise to a finding of discrimination on the basis of sex in this case, can apply equally to the claim of discrimination based on disability. The CF's policy has the effect of providing a benefit in the course of employment (i.e. funding for IVF treatments) to CF members with a form of disability that prevents them from conceiving a child (bilateral fallopian tube obstruction). At the same time, the same benefit is denied to CF members with a different form of the disability (male factor infertility). The proper comparative question to pose in this context does not differ greatly from that used in conducting the analysis of discrimination based on sex: Does the CF offer the same benefit to its members with male factor infertility that it offers to its members whose infertility is caused by another disability (bilateral fallopian tube obstruction)? [107] The answer to this question is also no. A prima facie case of adverse differential treatment between persons with different forms of disability has been established. The CF's submissions in favour of a reasonable non-discriminatory explanation for such a finding do not differ from those made in regard to the claim of discrimination on the basis of sex. There is no distinction to be drawn between the two grounds of discrimination, with respect to the CF's assertion that it would suffer undue hardship if required to expand its IVF funding policy. In effect, the CF presented and relied upon the same evidence and arguments with respect to the disability complaint as it did with respect to the allegations of discrimination on the basis of sex. [108] The CF's defence can therefore be considered in the same manner in both instances and my findings are similar as well. The same flaws in the evidence regarding the estimates of the cost of expanding the policy emerge in both cases and my finding is likewise the same: any additional expenses associated with an expanded IVF funding policy would not be excessive to the point of imposing undue hardship on the CF. [109] I therefore find that CF's refusal to provide funding to Mr. Buffett for IVF differentiated adversely against him on the basis of his disability. His complaint in this respect has been substantiated as well. E. Allegation of discrimination on the basis of family status [110] Neither the Commission nor Mr. Buffett made any significant submissions regarding this alleged ground of discrimination at the hearing, other than a general statement made by Commission counsel in closing arguments that the IVF funding policy was discriminatory on the basis of family status to a certain extent. I was not directed to any evidence that would support or relate to this allegation, and it would be a breach of fairness and natural justice for me to try to formulate arguments in support of this portion of the complaint and make findings thereon. The allegation of discrimination on the basis of family status has not been substantiated. F. The Section 10 complaint [111] Given my findings regarding the s. 7 complaint, I do not believe it is necessary to address the claim that the CF's policy that resulted in the denial of funding for IVF treatment, was also in breach of s. 10. The evidence adduced in this case has led to a finding of discrimination under s. 7. Where a complaint has been substantiated, the tribunal is authorized to issue remedial orders, including all of those being sought by the CHRC and Mr. Buffett in the present case, pursuant to s. 53 of the Act. One of the specific orders being sought in this case, requesting a change in the CF's IVF funding policy, can be made whether the complaint is substantiated under s. 7 or s. 10 (see Moore v. Canadian Grain Commission, 2006 CHRT 38 at paras. 5, 7-10; Gaucher v. Canadian Armed Forces, 2005 CHRT 1 at paras. 15-16). I do not see the necessity, therefore, to address Mr. Buffett's allegation of discrimination pursuant to s. 10 of the Act. [112] I would note in passing, however, that a question could be raised about whether CF's denial of coverage for IVF treatments can be construed, pursuant to s. 10 of the Act, as a potential deprival of an employment opportunity or les chances d'emploi ou d'avancement, in the French version of the Act. This question was, however, not brought up or debated by the parties at the hearing into the complaint, and given my earlier findings, I do not believe that any s. 10 finding is required. G. What remedial orders are Mr. Buffett and the Commission seeking? (i) An order that the employment benefit be provided to Mr. Buffett [113] The Tribunal may, pursuant to s. 53(2)(b), order a respondent to make available to the victim of the discriminatory practice, on the first reasonable occasion, the rights, opportunities or privileges that were denied the victim as a result of the practice. Accordingly, Mr. Buffett and the Commission request that the CF be ordered to provide him with funding for IVF treatments with ICSI for himself and his spouse, Rhonda Buffett. [114] The evidence of the medical experts who testified in this case suggested that IVF treatments may not be suitable for some patients. The age of both the man and the woman may be an important factor in the decision to prescribe these treatments. In the present case, Mr. and Ms. Buffett are both in their 40's. Keeping this in mind, any order from the Tribunal regarding the funding of such treatments should of course be conditional on the recommendations and advice of the couple's reproductive technology specialist. Consequently, if their specialist continues to recommend that Mr. and Ms. Buffett obtain IVF treatments with ICSI, and they opt to do so, the CF is ordered to fund these treatments, to a maximum of three cycles. The CF's obligation is to provide employment benefits to its employees in a substantively equal and non-discriminatory manner. Under the existing policy, women with bilateral fallopian tube obstruction are offered coverage for up to three cycles of IVF treatment. Mr. Buffett is entitled to an equal number of cycles of IVF treatment with ICSI. (ii) Compensation for pain and suffering - s. 53(2)(e) of the Act [115] Mr. Buffett testified that what he has experienced has taken an extreme toll on him. Of course, as the CF pointed out in final arguments, much of this toll was due to the simple fact that his infertility problems have prevented him and his wife from having children. He testified of the pain both of them have felt witnessing the joy that relatives and others around them were sharing with their children, a joy in which they were not able to partake. The CF argues that consequently, Mr. Buffett's pain and suffering is not linked to the CF's IVF funding practices, which I have determined to have been discriminatory, but rather to his own personal situation and fate. [116] Yet, the expert evidence would suggest that had the CF provided Mr. Buffett with the employment benefit of funding for the treatments that he had requested as early as 1998 (when he and his wife were still in their 30's), it is very possible they would have had children years ago. Had they undergone a successful treatment, the pain and suffering that he continues to experience would have ceased. Of course, it is not certain that the treatments would have yielded a successful pregnancy, but the possibility exists just the same. [117] In my view, Mr. Buffett is entitled to compensation for the pain and suffering that might have ceased had the CF not denied him funding in a discriminatory manner. [118] In addition, Mr. Buffett testified as to the emotional highs and lows that he experienced because of the contradictory decisions and opinions that he received as his grievance progressed through the ranks until it reached the Chief of Defence Staff. The happiness that Mr. Buffett enjoyed whenever he received endorsements for his position from a senior officer would later be completely displaced by utter sadness when the next reviewing officer would turn his request down. [119] Taking all of these circumstances into account, I order the CF to pay Mr. Buffett $7,500 in compensation for his pain and suffering. (iii) Interest [120] Interest is payable in respect of the monetary award made in this decision (s. 53(4) of the Act). The interest shall be calculated in accordance with Rule 9(12) of the Tribunal Rules of Procedure, and it shall run from the date of Mr. Buffett's initial grievance, November 10, 1998. (iv) An order that the CF cease its discriminatory practice [121] The Commission and Mr. Buffett have requested that the Tribunal order the CF to cease its discriminatory practice and take measures to redress the practice or prevent it from occurring in the future. The Commission seemed to suggest that the CF should be required to amend its policy so as to make funding available for IVF treatment for all its members on an indefinite basis. [122] In my view, such an order would be inappropriate. The CF has been found liable for having failed to provide an employment benefit to all its employees in a substantively equal and non-discriminatory manner. It is not for the Tribunal in this case to dictate which procedures the CF should be funding. However, for as long as the CF maintains its policy of funding IVF treatments for the benefit of any of its members who experience infertility, it must do so in a non-discriminatory fashion, in accordance with the findings in this decision. [123] With this understanding in mind, and pursuant to s. 53(2)(a), I order the CF to take measures, in consultation with the Commission on the general purposes of the measures, to amend its policy for the funding of IVF treatments, such that CF members with male factor infertility receive substantively equal benefits as either CF members with double fallopian tube obstruction, or all female CF members, as the case may be. (v) Sensitivity training [124] The Commission has requested an order to the effect that members of the CF who are responsible for the development and administration of its health care policy receive sensitivity training in respect of human rights law issues to the extent that they relate to the decisions that these individuals make. The Commission alluded specifically to the evidence before the Tribunal that at no time during the development of the policy for IVF funding nor during the development of the Spectrum of Care policy in general, did the CF seek the opinion of legal counsel. The Commission appeared to suggest that the CF's decision-making process in this regard failed to take into account the legal, and particularly human rights law, implications. [125] While it may be that the present dispute could have been avoided had the CF sought advice from legal counsel prior to adopting its IVF funding policy, I am not persuaded that this constitutes sufficient cause to order the sensitivity training that is being sought by the Commission. Undoubtedly, the CF and its staff will derive a good measure of understanding of the factors that should be taken into account when administering its health care policy, from the reasons of this decision alone. The Commission's request for sensitivity training is denied. Signed by Athanasios D. Hadjis OTTAWA, Ontario September 15, 2006 PARTIES OF RECORD TRIBUNAL FILE: T976/9604 STYLE OF CAUSE: Terry Buffett v. Canadian Forces DATE AND PLACE OF HEARING: September 7 to 9, 2005, Edmonton, Alberta December 12 to 14, 2005, Ottawa, Ontario January 10 and 24, 2006, Ottawa, Ontario and Edmonton, Alberta (by videoconference) DECISION OF THE TRIBUNAL DATED: September 15, 2006 APPEARANCES: Terry Buffett For himself Giacomo Vigna For the Canadian Human Rights Commission Elizabeth Richards For the Respondent

2006 CHRT 4

CHRT

Warman v. Kulbashian

en

2006-01-30

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6481/index.do

2023-12-01

Warman v. Kulbashian Collection Canadian Human Rights Tribunal Date 2006-01-30 Neutral citation 2006 CHRT 4 File number(s) T869/11903 Decision-maker(s) Hadjis, Athanasios Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE RICHARD WARMAN Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - ALEXAN KULBASHIAN, JAMES SCOTT RICHARDSON, TRI-CITY SKINS.COM, CANADIAN ETHNIC CLEANSING TEAM, AND AFFORDABLE SPACE.COM Respondents RULING 2006 CHRT 04 2006/01/30 MEMBER: Athanasios D. Hadjis [1] The inquiry into Mr. Warman's complaint began on August 30, 2004. After 13 days of hearings into the evidence, final submissions from all parties were heard from February 23rd to February 25th, 2005. The parties were given additional time thereafter to address certain issues in writing, namely two court decisions that had just been released. Mr. Warman filed his additional submissions on March 2, 2005, and Mr. Kulbashian followed suit on March 21, 2005. The Commission opted not to send in any additional submissions. I would note that Mr. Kulbashian took this opportunity to make several additional arguments, which were unrelated to the court decisions to which he was supposed to limit his remarks. [2] The Tribunal thereafter took the case under advisement and is still considering its decision. [3] On January 3, 2006, some ten months after final oral arguments were completed, Mr. Kulbashian filed a motion to revisit a witness, which was basically a request to have Mr. Warman called to the stand again to be cross-examined by Mr. Kulbashian (Motion no. 1). [4] On January 4, 2006, Mr. Kulbashian filed a motion to exclude evidence against Tri-City Skins.com and Affordablespace.com from the judgment phase of the Tribunal process (Motion no. 2). In this motion, Mr. Kulbashian essentially argued that both of these respondents are not entities capable of being parties subject to a complaint under s. 13 of the Canadian Human Rights Act. [5] On January 6, 2006, Mr. Kulbashian sent to the Tribunal some information about Mr. Warman and the Commission's witness, Terry Wilson, which actually consisted of supplemental documentary evidence that Mr. Kulbashian sought to introduce relating to their testimonies (Motion no. 3). [6] Another motion was filed on the same day, January 6, 2005 (Motion no. 4), although I think it should be more aptly characterized as additional arguments. They were to the effect that the Tribunal has no jurisdiction to deal with any Internet messages that were allegedly not specifically set out in the complaint nor mentioned in the Commission investigator's report. [7] It seems copies of Motions 3 and 4 were not forwarded on by the Tribunal to the Commission and Mr. Warman, as has been the normal practice in this case. The Tribunal Registry is instructed to forward copies of these motions to the Commission and Mr. Warman forthwith. [8] On January 19, 2006, Mr. Kulbashian presented another motion, requesting that the evidence that had already been introduced at the hearing, relating to a copy of a computer's hard drive, now be excluded from this Tribunal process (Motion no. 5). [9] On January 20, 2006, the Commission and Mr. Warman filed their submissions in reply to Mr. Kulbashian's first two motions (of January 3 and 4, 2006). The Commission complained in its submissions of the manner in which Mr. Kulbashian has proceeded with his motions. The Commission alleges that this sequential filing of motions, which are in some ways repetitious of one another, constitutes an abuse of process. Just as Commission counsel was preparing to address one motion, another would be filed. The Commission asks the Tribunal to rule on the first two motions before compelling the Commission to devote additional effort addressing the subsequent motions. [10] On January 23, 2006, Mr. Kulbashian filed yet another motion, this time requesting that the Tribunal exclude evidence against the Respondent C.E.C.T. from the judgment phase of the Tribunal process (Motion no. 6). The submissions contained in this motion resemble those in Mr. Kubashian's earlier motion of January 4, 2006. [11] I agree with the Commission. Mr. Kulbashian has indeed inundated the other parties with a barrage of motions, at what is effectively the very last minute prior to the issuance of the decision on the merits into the complaint. In my view, the Tribunal's process is best served by the Tribunal issuing its findings on all of these motions immediately. I do not find it necessary to hear any further submissions regarding Mr. Kulbashian's motions. Motion no. 1 [12] In the case of Vermette v. CBC, (1994) 28 C.H.R.R. D/89 (C.H.R.T.), aff'd (1996) 28 C.H.R.R. D/139 (F.C.T.D.), the Tribunal addressed the issue of re-opening a hearing to adduce additional evidence. Relying on Sopinka's and Lederman's The Law of Evidence in Civil Cases, the Tribunal noted that, except in the case of fraud or surprise, the evidence that a party seeks to introduce must be newly discovered, and must be evidence that, with reasonable diligence, could not have been discovered during the trial. It must also be of such a character that it would have a determining factor in the result. Where the application to reopen is received prior to the decision being rendered, a broader discretion to reopen has been recognized. [13] In the present case, Mr. Kulbashian is not trying to adduce newly discovered evidence, as he himself acknowledged at page 2 of his motion: During the Tribunal hearing, the applicant attempted to question Richard Warman on his association with the ARA. The Commission and the witness objected, and the Tribunal ruled that there would be no cross-examination relating to his association with the ARA. Mr. Kulbashian now wants to call Mr. Warman back to the witness stand to cross-examine him with regard to his involvement with the ARA group, which is in effect an attempt to re-introduce the same evidence. In so doing, Mr. Kulbashian is asking the Tribunal to re-visit its decision maintaining the other parties' objections to this line of questioning. I see no reason to do so. The respondents made their submissions regarding these objections when they sought to adduce the evidence at the hearing. The Tribunal considered their submissions and ruled. The ruling stands. Motion no. 1 is dismissed. Motion no. 2 [14] This motion strikes me more as an attempt to present additional arguments rather than a motion to exclude evidence. The fact of the matter is that this issue was already addressed by the parties during final submissions. I do not see anything fundamentally new in the way of argument in what Mr. Kulbashian has submitted in his motion. In any event, I would view any attempt to re-argue the case at this time as unfair and an abuse of process. [15] Final oral submissions were conducted over three days in February 2005. Mr. Kulbashian's argument lasted about one hour on the first day, took up the entirety of the following day, and continued into the final day for an additional fifty minutes. The co-respondent, Mr. Richardson, followed with his own arguments that ran for approximately one hour and twenty minutes. [16] In my view, Mr. Kulbashian had ample opportunity to present all of his arguments. Moreover, he took advantage of the occasion that the Tribunal afforded him and the other parties to file follow-up submissions in writing, regarding some recently court decisions. Instead of just commenting on those decisions, Mr. Kulbashian went on to write almost two single-spaced pages of additional final arguments, which had nothing to do with the decisions in question. In contrast, Mr. Warman kept himself within the guidelines set down by the Tribunal. [17] It is most unfair to the other parties for Mr. Kulbashian to return now, some ten months later, and attempt to re-argue his case, particularly since these arguments relate to issues that were already addressed or could reasonably have been raised during the three days' hearing on final submissions. Motion no. 2 is dismissed. Motion no. 3 [18] In fact, Mr. Kulbashian did not quite file a motion. Rather, he sent a series of documents to the Tribunal, asking that they be submitted to the Tribunal member who heard the case. I will nonetheless treat this as a motion to re-open the case in order to adduce new evidence. [19] Mr. Kulbashian states in his cover letter that the first set of documents consists of some posts made by Mr. Warman on a white supremacist forum on the Internet. Mr. Kulbashian alleges that the comments made in these posts violate s. 13 of the Canadian Human Rights Act. Mr. Kulbashian does not indicate what the relevance is to the present case, nor do I perceive any. Referring back to the principles articulated in Vermette, supra, I do not see what determining factor this evidence would have in the result of this case. As I reminded both Mr. Kulbashian and Mr. Richardson repeatedly during the hearing, the matter at issue before me consists of the discriminatory practices that were allegedly conducted by the respondents, not by other persons. [20] The second set of attachments to Motion no. 3 relate to a complaint filed by Mr. Kulbashian with the New Westminster Police Service, which is the current employer of Commission witness, Terry Wilson. Mr. Kulbashian makes a series of allegations against Mr. Wilson in this complaint. I again fail to see any relevance in these documents, particularly since they do not contain any finding from any authority with regard to Mr. Wilson. There is only an acknowledgement from the Office of the Police Complaint Commission that the issues raised in Mr. Kulbashian's complaint can be characterized as Public Trust. As in the case of the first set of attachments, I do not see how this evidence would be a determining factor in the result of the present case. [21] Furthermore, I find it objectionable that Mr. Kulbashian has attempted through his correspondence with the Tribunal to deposit into the record evidence that did not come properly before the Tribunal at hearing. There is no indication that any of these documents were ever previously disclosed to the other parties, not to mention that the hearing into this case has been closed for over ten months. [22] Motion no. 3 is dismissed. The original correspondence from Mr. Kulbashian can remain in the Tribunal's official record, but the attachments in question will not be considered in my final disposition of the case. Motion no. 4 [23] Just as in Motion no. 2, Mr. Kulbashian is attempting to re-argue the case. As I indicated when addressing Motion no. 2, Mr. Kulbashian had more than ample opportunity ten months ago to address all of the issues put before the Tribunal. It would be unfair to all parties and an abuse of this Tribunal's process to permit him to re-argue his case at this late stage. [24] Motion no. 4 is dismissed. Motion no. 5 [25] This motion is again an attempt to re-visit evidence adduced during the hearing. This motion or objection could have been raised when the evidence in question was adduced at the hearing or, at the very least, could have been argued in final submissions. It is not now the time, at this extremely late stage of the inquiry process, for Mr. Kulbashian to try to go back and have evidence excluded. [26] Motion no. 5 is also dismissed. Motion no. 6 [27] This motion consists of additional arguments that closely resemble those made in motion no. 2. For the reasons already given with respect to Motion no. 2, Motion no. 6 is also dismissed. [28] Mr. Kulbashian has stated in footnotes to his motions that the reason for the late submission of his motions is due to his lack of legal experience. Over the course of the entire inquiry process, the Tribunal has attempted to extend to both unrepresented respondents a significant degree of accommodation on account of their legal inexperience. However, such accommodation cannot go so far as to render the process unfair and prejudicial to the other parties. [29] In light of my findings dismissing Mr. Kulbashian's six motions, the parties are released from filing any outstanding submissions regarding these motions that had been requested in previous correspondence from the Tribunal. Signed by Athanasios D. Hadjis OTTAWA, Ontario January 30, 2006 PARTIES OF RECORD TRIBUNAL FILE: T869/11903 STYLE OF CAUSE: Richard Warman v. Alexan Kulbashian, James Scott Richardson, Tri-City Skins.com, Canadian Ethnic Cleansing Team and Affordable Space.com RULING OF THE TRIBUNAL DATED: January 30, 2006 APPEARANCES: Richard Warman On his own behalf Giacomo Vigna Ikram Warsame For the Canadian Human Rights Commission Alexan Kulbashian On his own behalf

2006 CHRT 40

CHRT

Gaucher v. Canadian Armed Forces

en

2006-09-22

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6722/index.do

2023-12-01

Gaucher v. Canadian Armed Forces Collection Canadian Human Rights Tribunal Date 2006-09-22 Neutral citation 2006 CHRT 40 File number(s) T903/2304 Decision-maker(s) Hadjis, Athanasios Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE ALETA GAUCHER Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADIAN ARMED FORCES Respondent RULING 2006 CHRT 40 2006/09/22 MEMBER: Athanasios D. Hadjis [1] In her Amended Statement of Particulars, dated June 15, 2006, the Complainant declared her intention to call Professor Patrica Monture as an expert witness in this case. She is to give evidence on discrimination in the context of the facts of this matter and in the context of her research and publications. [2] The Respondent objects to the Complainant adducing this evidence. [3] Prof. Monture is a member of the Sociology Department at the University of Saskatchewan. She outlines the substance of her proposed evidence in an expert report, which was prepared in the form of a three-page affidavit. In paragraphs 1 through 3 of the affidavit, she explains that her area of study is primarily in law and society, as well as constitutional law, including Aboriginal and Treaty rights, Aboriginal women, and criminology. She also sets out her related experience in the area. [4] I have reviewed the affidavit and agree with the Respondent that Prof. Monture's proposed evidence is either irrelevant, unnecessary to the Tribunal, or improperly gives evidence on the ultimate issue. The evidence should therefore be excluded. Irrelevant Evidence [5] The Supreme Court, in R. v. Mohan [1994] 2 S.C.R. 9, described the criteria for the admissibility of expert evidence. The Court pointed out, at paragraph 18, that relevance is a threshold requirement for the admission of expert evidence, as it is with all other evidence. [6] In my view, a portion of Prof. Monture's evidence is clearly irrelevant, namely her opinion, found at paragraph 11 of her affidavit, to the effect that the Canadian Human Rights Commission's response to the complaint demonstrates a clear lack of understanding of Aboriginal women's experience, systemic discrimination and intersectionality. [7] The issue in this case is whether the evidence adduced establishes that the Respondent engaged in a discriminatory practice, in contravention of the Canadian Human Rights Act. I fail to see how the Commission's response to the complaint will be in any way relevant to this issue. Unnecessary Evidence [8] In Mohan, the Court also states, at paragraph 21, that an expert's function is to provide the judge and jury with a ready-made inference that the judge and jury, due to the technical nature of the facts, are unable to formulate. The Supreme Court went on to say that if, on the proven facts, a judge or jury can form their own conclusions without help, the experience of the expert is unnecessary. [9] In paragraphs 4 through 10 of the affidavit, Prof. Monture refers to literature in the area of discrimination and then purports to define the concepts of individual and systemic discrimination, as well as the intersectionality of discrimination on the basis of multiple proscribed grounds of discrimination. These concepts are matters that are regularly addressed by the Canadian Human Rights Tribunal in its decisions. The Tribunal's superior expertise regarding fact finding and adjudication in the human rights context has been judicially recognized (see e.g. R v. Mossop, [1993] 1 S.C.R. 554). [10] In my view, this portion of Prof. Monture's proposed evidence falls squarely within the experience and knowledge of the Tribunal and is accordingly unnecessary. Evidence of the Ultimate Issue [11] In paragraph 8 of her affidavit, Prof. Monture states that in her opinion several of the incidents alleged by the complainant to have occurred while she was a member of the CF, constitute clear and obvious examples of individual discrimination. This is, in effect, her opinion on the ultimate issue that the Tribunal will be deciding in this case, i.e. whether the Complainant was the victim of a discriminatory practice. [12] As the Tribunal pointed out in Brooks v. Department of Fisheries and Oceans, 2004 CHRT 20, while the rule against providing an opinion on the ultimate issue has been relaxed in recent years, it must still be respected. Every adjudicative body has an obligation to reach its own conclusion on the fundamental issues in a case, without direction from the parties. In my view, this is particularly so with respect to human rights issues, regarding which the Tribunal has the above mentioned expertise and is therefore able to draw the very inferences being proposed by Prof. Monture in her report, without her help. Conclusion [13] For all of these reasons, the proposed expert testimony of Prof. Monture and her affidavit are excluded from the evidence in this case. Signed by Athanasios D. Hadjis OTTAWA, Ontario September 22, 2006 PARTIES OF RECORD TRIBUNAL FILE: T903/2304 STYLE OF CAUSE: Aleta Gaucher v. Canadian Armed Forces RULING OF THE TRIBUNAL DATED: September 22, 2006 APPEARANCES: Dennis Callihoo For the Complainant No one appearing For the Canadian Human Rights Commission Doreen Mueller Peter Barber For the Respondent

2006 CHRT 41

CHRT

Center for Research-Action on Race Relations v.www.bcwhitepride.com

en

2006-10-11

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6723/index.do

2023-12-01

Center for Research-Action on Race Relations v.www.bcwhitepride.com Collection Canadian Human Rights Tribunal Date 2006-10-11 Neutral citation 2006 CHRT 41 File number(s) T1120/0206 Decision-maker(s) Jensen, Karen A. Decision type Ruling Decision status Interim Grounds Disability National or Ethnic Origin Race Religion Decision Content Between: Center for Research-Action on Race Relations Complainant - and - Canadian Human Rights Commission Commission - and - www.bcwhitepride.com Respondent Ruling Member: Karen A. Jensen Date: October 11, 2006 Citation: 2006 CHRT 41 [1] This is a ruling regarding the venue for the hearing into the complaint brought against www.bcwhitepride.com by the Center for Research-Action on Race Relations (CRARR). CRARR alleges that the Respondent, www.bcwhitepride.com, communicated hate messages over the Internet contrary to s. 13 of the Canadian Human Rights Act. [2] The Canadian Human Rights Commission (the Commission) and CRARR both submit that the hearing should be held either in Ottawa or in Montreal since they are located in those two cities and their two witnesses reside in Montreal and Ottawa. [3] Mr. Paul Fromm argued, on behalf of the Respondent, that the hearing should be held in Penticton, British Columbia. Mr. Fromm submitted that, although not a named Respondent, Mr. John Beck is the subject of a motion by the Commission to add him as a Respondent to the present complaint. Mr. Beck wishes to contest this motion. According to Mr. Fromm, Mr. Beck does not have the financial means to attend a hearing in Ottawa or Montreal. Mr. Fromm further argues that the Respondent’s witness, Mr. Bernard Klatt, lives in the south Okanagan region of British Columbia. Moreover, the named Respondent, www.bcwhitepride.com, is or was ostensibly based in British Columbia. [4] It is the usual practice of the Tribunal to hold hearings in the place where the alleged discrimination occurred. However, in cases involving the alleged communication of hate messages over the Internet, it is difficult to determine exactly where the discrimination occurred. The Tribunal strives to accommodate the parties where it is appropriate to do so (Warman v. Canadian Heritage Alliance and Melissa Guille 2006 CHRT 17 at para 4). [5] In this case, there are two parties with two witnesses who would like the hearing to be in Ottawa or Montreal. On the other side, there is one party and one potential party with one witness (possibly two) who would like the hearing to take place in British Columbia. Thus, the competing demands are relatively equal on a numeric basis. However, I find that the balance of convenience favours the Respondent in this case. [6] For some reason, Mr. John Beck was not named as a Respondent before the complaint was referred to the Tribunal. The Commission has, however, provided notice that it will seek to have him added as a Respondent at the outset of the hearing. The Commission wants Mr. Beck to travel to Ottawa or Montreal so that it can attempt to have him added as a party. This does not seem fair. In my view, if the Commission wishes to add Mr. Beck as a party, then it must bring its motion to do so in Penticton, British Columbia. [7] Given that there is at least one other witness from that part of British Columbia and the Respondent is also from British Columbia, I think that it makes sense to hold the entire hearing in Penticton. Moreover, there is a plausible argument to be made that the Commission and the Complainant may well be in a better position than the Respondent and the potential Respondent to bear the costs of a hearing in a different venue. [8] Therefore, I direct that the hearing into this complaint be conducted in Penticton, British Columbia, or as close thereto as can be arranged by the Tribunal. Signed by Karen A. Jensen Tribunal Member Ottawa, Ontario October 11, 2006 Canadian Human Rights Tribunal Parties of Record Tribunal File: T1120/0206 Style of Cause: Center for Research-Action on Race Relations v. www.bcwhitepride.com Ruling of the Tribunal Dated: October 11, 2006 Appearances: Fo Niemi, for the Complainant Giacomo Vigna, for the Canadian Human Rights Commission Paul Fromm, for the Respondent

2006 CHRT 42

CHRT

Montreuil v. Canadian Forces

en

2006-10-12

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6724/index.do

2023-12-01

Montreuil v. Canadian Forces Collection Canadian Human Rights Tribunal Date 2006-10-12 Neutral citation 2006 CHRT 42 File number(s) T1047/2805 Decision-maker(s) Jensen, Karen A. Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE MICHELINE MONTREUIL Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADIAN FORCES Respondent RULING 2006 CHRT 42 2006/10/12 MEMBER: Karen A. Jensen [1] This is a ruling on a motion presented by the Canadian Human Rights Commission (the Commission) requesting that the Tribunal order the Respondent, the Canadian Forces (the CF), to disclose material for which a claim of privilege has been asserted. [2] The motion is made in the context of a complaint filed by Ms. Micheline Montreuil. Ms. Montreuil considers herself to be a transgendered person. In her complaint, she alleges that the CF discriminated against her on the basis of her sex and perceived disability when they refused to allow her to enlist in the Forces in 1999. [3] During the Tribunal's case management process, the CF indicated that they intended to present expert medical evidence. The Tribunal directed the CF to provide the parties with a copy of the expert's report by April 24, 2006. [4] Three days before the report was due, the CF requested an extension of the deadline for filing the expert report. In his request for an extension, counsel for the CF indicated that he had recently been assigned to the file and that in discussions with the expert, Dr. Pierre Assalian, it was decided that the scope of the report needed to be broadened. It was also determined that Dr. Assalian should interview Ms. Montreuil. [5] The Tribunal granted the request for an extension and a new date of June 23, 2006 was set for the production of Dr. Assalian's report. The CF provided a copy of Dr. Assalian's report to the parties on June 22, 2006. [6] The Commission sought further disclosure from the CF of documents that were prepared by, or addressed to Dr. Assalian in conjunction with the expert report. The documents in question are the following: all reports, whether complete or preliminary, prepared by Dr. Pierre Assalian on or before April 24, 2 006; all communications, correspondence and/or exchanges of any nature without exception between the Canadian Forces and Dr. Assalian that contributed to the formulation of the expert opinion; all other documents created by Dr. Assalian in the context of the present case. [7] The Respondent refused to provide the requested documents claiming that they were immune from disclosure by virtue of the right to professional secrecy. [8] The Commission then brought the present motion before the Tribunal. At the hearing on the motion, the Commission argued that the Tribunal should apply the common law rules regarding privilege against disclosure. According to these rules, the CF had waived its claim of privilege to the requested documents when it produced Dr. Assalian's report and stated that they would be calling him as a witness at the hearing. [9] The Respondent replied that, according to Quebec law, the CF did not waive its right to the confidentiality of the requested documents when it produced Dr. Assalian's Expert Report. [10] Section 50(4) of the Canadian Human Rights Act stipulates that the Tribunal may not admit or accept as evidence anything that would be inadmissible in a court by reason of any privilege under the law of evidence. We are not, however, at the stage in this process where the admissibility of evidence is being determined. We are at the disclosure stage of the inquiry process. [11] Rule 6(1)(e) of the Tribunal's Rules of Procedure requires each party to serve and file a list of all documents in the party's possession for which privilege is claimed. The French version of Rule 6(1)(e) requires the parties to indicate the documents in their possession for which un privilège de non-divulgation is invoked. To be clear, I take the terms privilege (in English) and privilège de non-divulgation (in French), as they are in the Rules, to include the concept of professional secrecy as that term is used in Quebec law. [12] Rule 6 of the Tribunal's Rules of Procedure does not require the parties to produce the actual documents for which privilege is claimed. I am of the view that if a claim of privilege is challenged at the disclosure stage of the process, the Tribunal is not obliged to conclusively determine whether the claim of privilege is properly asserted or not. In circumstances such as the present case, where the issues are complex and where no evidence has been adduced with respect to the documents in question, it would not be prudent in my view, to make a definitive ruling on whether the documents are subject to a claim of privilege. [13] Privilege is a fundamental right which should not lightly be abrogated (Smith v. Jones, [1999] 1 S.C.R. 495 at para. 74). In Quebec, strong and generous protection is afforded to the right of professional secrecy (Foster Wheeler Power Co. v. Société municipale de gestion et d'élimination des déchets (SIGED) Inc., 2004 SCC 18 at para. 41). [14] Therefore, I think that it is preferable in the present circumstances to assess whether the Respondent has established a plausible argument that privilege attaches to the requested documents and that it has not been waived. If it is established that the documents in question are arguably privileged, then in my view, the Tribunal should not order the disclosure of the documents in question. It will then be up to the Tribunal member or panel hearing the case on the merits to make a conclusive determination, on the basis of the evidence and arguments presented at that time, as to whether the requested documents are in fact subject to a valid claim of privilege and, therefore, inadmissible pursuant to s. 50(4) of the Act. [15] The Complainant has raised the concern that if the documents are not disclosed prior to the hearing and she is successful in refuting the claim of privilege over the requested documents, she will lose the right to have these documents introduced into evidence by operation of Rule 9(3)(c) of the Tribunal's Rules of Procedure. Rule 9(3) of the Tribunal's Rules of Procedure stipulates that (e)xcept with leave of the Panel a party shall not introduce a document into evidence at the hearing that has not previously been disclosed. According to my reading of this rule, the Tribunal has the authority to grant leave to the complainant to introduce documents into evidence even if they have not been disclosed prior to the hearing. Therefore, should the Tribunal decide that the claim of privilege is unfounded, it may order that the documents be disclosed and entered into evidence if it is appropriate to do so. [16] Is there a plausible argument to be made that privilege applies to the documents listed above and that it has not been waived? I think that the answer to this question is yes. I find that there is certain logic in the following arguments presented by counsel for the Respondent. Section 50(4) of the Canadian Human Rights Act does not stipulate which jurisdiction's laws of evidence are to be applied in interpreting the term privilege. By operation of sections 2 and 40 of the Canada Evidence Act, the Tribunal is required to apply the law of evidence in force in the province of Quebec in the present case. In Poulin v. Prat, [1994] R.D.J. 301, the Quebec Court of Appeal stated that according to Quebec law, calling an expert witness to testify does not constitute an implicit waiver of the immunity from disclosure of the notes, rough copies, drafts and other documents created by the expert in preparation for the drafting of the final report. Similarly, immunity from disclosure of the communications between the lawyer that retained the expert and the expert is not waived by calling the expert. Rather, a party may only be said to have waived the immunity with respect to the definitive opinion which forms the basis for the expert's testimony, as well as the factual sources upon which the expert drew in formulating his or her opinion. Poulin v. Prat has not been attenuated or modified by any subsequent decisions of the Quebec Court of Appeal or the Supreme Court of Canada. Therefore, by virtue of s. 40 of the Canada Evidence Act, Poulin v. Prat is binding upon the Tribunal. The Respondent claims that the Commission has requested previous drafts of the expert's report, his notes and copies of correspondence between the expert and the lawyer that retained his services. The Respondent asserts that according to Poulin v. Prat, all of these documents are immune from disclosure. [17] In my view, the plausibility of the Respondent's arguments on the issues is not significantly weakened by the arguments made by the Commission and the Complainant. [18] The Commission argued that the Tribunal should apply the common law principles regarding privilege as they were expressed by the B.C. Supreme Court in Vancouver Community College v. Phillips, Barrat, (1987), 20 B.C.L.R. (2d) 289 and subsequently applied in the federal context by the Federal Court of Canada, Trial Division, in Canadian Council of Professional Engineers v. Memorial University of Newfoundland (1998), 159 F.T.R. 55. Vancouver Community College stands for the proposition that production from experts of documents going to substance or credibility may be required at trial when the expert is called. Assuming, however, that the common law recognizes the right to such documents at trial, there is no certainty whatsoever that such a right exists at the discovery or disclosure stage of the process (Canadian Council of Professional Engineers v. Memorial University of Newfoundland, supra, at para.1). [19] For these reasons, the Commission's motion for an Order requiring the Respondent to disclose the above-noted documents is denied, without prejudice to its right to raise the issue again at the hearing into the merits of the complaint. [20] It should be noted that my finding that the documents are arguably privileged does not mean that the documents are, in fact, privileged. It remains to be determined by the Member or panel hearing the case on the merits whether, on the basis of the evidence and arguments presented during the hearing, the requested documents are, in fact, subject to privilege and therefore, inadmissible pursuant to s. 50(4) of the CHRA. Signed by Karen A. Jensen OTTAWA, Ontario October 12, 2006 PARTIES OF RECORD TRIBUNAL FILE: T1047/2805 STYLE OF CAUSE: Micheline Montreuil v. Canadian Forces DATE AND PLACE OF PRELIMINARY HEARING: September 18 and 21, 2006 Ottawa and Quebec via videoconference RULING OF THE TRIBUNAL DATED: October 12, 2006 APPEARANCES: Micheline Montreuil For herself Ikram Warsame For the Canadian Human Rights Commission Guy Lamb / Pauline Leroux For the Respondent

2006 CHRT 43

CHRT

Montreuil v. Canadian Forces

en

2006-10-16

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6718/index.do

2023-12-01

Montreuil v. Canadian Forces Collection Canadian Human Rights Tribunal Date 2006-10-16 Neutral citation 2006 CHRT 43 File number(s) T1047/2805 Decision-maker(s) Jensen, Karen A. Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE MICHELINE MONTREUIL Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADIAN FORCES Respondent RULING 2006 CHRT 43 2006/10/16 MEMBER: Karen A. Jensen [1] This is a ruling in response to a request by the Respondent, the Canadian Forces, for an order requiring the Complainant, Ms. Micheline Montreuil, to disclose certain documents. [2] The request is made in the context of a complaint filed by Ms. Montreuil. Ms. Montreuil considers herself to be a transgendered person. In her complaint, she alleges that the CF discriminated against her on the basis of her sex and perceived disability when they refused to allow her to enlist in the Forces in 1999. [3] The Respondent has requested the following documents: the expert report of Dr. Serge Côté, dated March 18, 1998; the disability report of Dr. Jean Rodrigue, dated January 5, 1998 establishing the Complainant's inability to work from January 19, 1998 to August 19, 1998; [4] The Complainant states that Dr. Côté's expert report was produced in the context of a grievance that she filed against a former employer, the Collège François-Xavier-Garneau. The question in that case was whether Mr. Montreuil, as she was known at the time, was fit to consent to a settlement agreement that provided for his voluntary resignation from the Collège. Mr. Montreuil maintained that he was unable to make a sound decision in that regard. He consulted with a psychiatrist, Dr. Serge Côté, who produced a report and testified on Mr. Montreuil's behalf at the arbitration. Excerpts of Dr. Côté's report appear in the Aribtrator's decision. In those excerpts, Dr. Côté makes reference to the fact that when Mr. Montreuil signed the agreement in December of 1997, he was in a state of significant distress having been confronted, for the first time in his life, with his double identity. It would appear that when he was referring to double identity Dr. Côté was referring to Mr. Montreuil's sexual identity. [5] The disability report by Dr. Rodrigue is purportedly a document that was submitted to an insurance company in support of an application for insurance coverage for the period from December 1997 to August 1998, during which Mr. Montreuil was unable to work due to the psychological difficulties referred to above. [6] In response to the Respondent's request for disclosure of the above-noted documents, Ms. Montreuil asserts that the requested documents are not relevant to the present proceedings and are subject to the right of professional secrecy. Therefore, they should not be disclosed. [7] I agree with the Respondent that the documents are arguably relevant to the present proceedings. Ms. Montreuil's fitness to serve in the Canadian Forces is in issue in this case. The requested documents relate to psychological difficulties that would appear to flow, at least in part, from issues regarding her sexual identity. The documents allegedly relate to the fact that as a result of these difficulties, Ms. Montreuil was unable to work for the better part of 1998. This was one year prior to her attempt to enlist in the Canadian Forces on June 30, 1999. [8] What is less clear, however, is whether these particular documents are subject to privilege or professional secrecy, as this term is employed in Quebec law. This point has not been properly addressed by the parties. Ms. Montreuil has alleged that the documents are subject to professional secrecy, but she has not made any argument with respect to this issue. The submissions of counsel for the Respondent and counsel for the Canadian Human Rights Commission deal principally with the issue of relevance. None of the parties have addressed the issues regarding privilege that arise in the context of this particular request. [9] Having regard to these considerations, the matter will be addressed at the hearing on the merits of the case which is due to commence on October 23, 2006. Signed by Karen A. Jensen OTTAWA, Ontario October 16, 2006 PARTIES OF RECORD TRIBUNAL FILE: T1047/2805 STYLE OF CAUSE: Micheline Montreuil c. Forces canadiennes RULING OF THE TRIBUNAL DATED: October 16, 2006 APPEARANCES: Micheline Montreuil For herself Ikram Warsame For the Canadian Human Rights Commission Guy Lamb / Pauline Leroux For the Respondent

2006 CHRT 44

CHRT

Montreuil v. Canadian Forces

en

2006-10-16

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6719/index.do

2023-12-01

Montreuil v. Canadian Forces Collection Canadian Human Rights Tribunal Date 2006-10-16 Neutral citation 2006 CHRT 44 File number(s) T1047/2805 Decision-maker(s) Jensen, Karen A. Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE MICHELINE MONTREUIL Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADIAN FORCES Respondent RULING 2006 CHRT 44 2006/10/16 MEMBER: Karen A. Jensen [1] On Friday, October 13, 2006, the Tribunal received a request for an adjournment from the Complainant and the Commission in the present case. The reason for the request was that the Respondent had disclosed, on October 12, 2006, five volumes of documents. Counsel for the Commission and the Complainant vigorously objected to the late disclosure of such a large quantity of documents and stated that they would be unable to properly prepare their cases as a result. The Complainant asked that the hearing be postponed until December 4, 2006 and that new dates for the continuation of the hearing be fixed in 2007. [2] The Respondent objected to the request for the adjournment, stating that many of the documents were known to the parties and that they were exaggerating the amount of work that was required to review the documents. [3] This request is yet another in a series of pre-hearing requests made by the parties. As the Tribunal decided in previous rulings on disclosure in this case, the present request by the Commission and the Complainant is best left to the Member or Panel hearing the merits of the case. At that time, it may be clearer as to which documents the Respondent intends to rely upon, which documents are truly new in that they have not previously been disclosed, and which documents, if any, must be reviewed by the experts. [4] If prejudice is established, it may be that Rule 9(3) of the Tribunal's Rules of Procedure will apply. It may also be that the Tribunal will be able to find practical ways to accommodate the parties' concerns. These determinations are better left to the member or the panel hearing the merits of the case. Signed by Karen A. Jensen OTTAWA, Ontario October 16, 2006 PARTIES OF RECORD TRIBUNAL FILE: T1047/2805 STYLE OF CAUSE: Micheline Montreuil v. Canadian Forces RULING OF THE TRIBUNAL DATED: October 16, 2006 APPEARANCES: Micheline Montreuil For herself Ikram Warsame For the Canadian Human Rights Commission Guy Lamb / Pauline Leroux For the Respondent

2006 CHRT 45

CHRT

Warman v. Tremaine

en

2006-10-17

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6720/index.do

2023-12-01

Warman v. Tremaine Collection Canadian Human Rights Tribunal Date 2006-10-17 Neutral citation 2006 CHRT 45 File number(s) T1104/8505 Decision-maker(s) Doucet, Michel Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE RICHARD WARMAN Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - TERRY TREMAINE Respondent RULING 2006 CHRT 45 2006/10/17 MEMBER: Michel Doucet [1] Although no motion was officially filed before the Tribunal, I have decided to dispose of this matter by a formal ruling. On September 13, 2006, the Tribunal received a letter from Mr. Paul Fromm, who during the hearing had acted, with the consent of the Tribunal, as a representative for the Respondent, Terry Tremaine. In this letter, Mr. Fromm requested that the case be re-opened to allow him to make a motion requesting that the complaint of Mr. Richard Warman be dismissed because of a poisoned environment and harassment on him, as representative of the Respondent, Terry Tremaine. [2] Submissions in opposition to Mr. Fromm's request were received from the Complainant and the Commission. [3] I will not deal with the allegations contained in Mr. Fromm's letter as they are not relevant to any of the issues raised in the complaint and furthermore the parties referred to in this letter were not parties to the complaint. If I was to re-open the case as requested, I would be dealing with a totally new issue concerning new parties. I also take notice of the fact that the Respondent, Terry Tremaine, did not address the Tribunal on this matter or indicate how these events might have affected his case. I must add though that even if he had brought this matter to my attention, there would have been no justification for a re-opening of the case on the basis of those allegations. I fail to see the connection between the allegations made by Mr. Fromm in his letter and the issues that I have to deal with in my decision. [4] For these reasons the request of Mr. Fromm's that the case be re-opened is denied. [5] In its Reply to Mr. Fromm's letter the Commission also sought remedies from the Tribunal. In particular it sought an Order that no further motions be introduced by the Respondent without obtaining the prior authorization from the Tribunal. Since there is no motion or evidence before the Tribunal, I see no reason to deal with this request at this time. Signed by Michel Doucet OTTAWA, Ontario October 17, 2006 PARTIES OF RECORD TRIBUNAL FILE: T1104/8505 STYLE OF CAUSE: Richard Warman v. Terry Tremaine RULING OF THE TRIBUNAL DATED: October 17, 2006 APPEARANCES: Richard Warman For himself Ikram Warsame For the Canadian Human Rights Commission Paul Fromm For himself Terry Tremaine No submissions received

2006 CHRT 46

CHRT

Warman v. Glenn Bahr and Western Canada for Us

en

2006-05-25

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6721/index.do

2023-12-01

Warman v. Glenn Bahr and Western Canada for Us Collection Canadian Human Rights Tribunal Date 2006-05-25 Neutral citation 2006 CHRT 46 File number(s) T1087/6805, T1088/6905 Decision-maker(s) Lloyd, Julie C. Decision type Ruling Decision status Interim Grounds Colour National or Ethnic Origin Race Religion Sexual Orientation Decision Content Between: Richarm Warman Complainant - and - Canadian Human Rights Commission Commission - and - Glenn Bahr - and – Western Canada For Us Respondents Ruling Member: Julie Lloyd Date: May 25, 2006 Citation: 2006 CHRT 46 Excerpt The Chairperson: Good morning, everybody. Afternoon now. The Registrar: Be seated. The Chairperson: I am going to address the motion that was put before us this morning. And I have got it written out, so I will just read it. In the within complaint, the complainant alleged that the respondents violated Section 13.1 of the Canadian Human Rights Act on numerous grounds: religion, race, national or ethnic origin, sexual orientation. The respondent's representative has brought a motion this morning seeking an order that this member recuse herself by reason of a reasonable apprehension of bias. First, I will note that there is no evidence tendered in support of this motion. The respondent's representative includes in his motion numerous extracts of what purports to be media clippings taken from the internet. The evidence was not tendered or put forward in proper form. The law is clear that the threshold is high because there is a presumption of neutrality. The onus of demonstrating bias lies with the person alleging its existence, and an allegation must be supported by material evidence. Here, the respondent's representative elected not to tender such evidence. The respondent's application must fail for that reason, and I so find. Further, however, and in the alternative, even if the material included in the respondent's statement of facts is taken at face value, I find that an allegation of bias has not been made out. First, there's been no suggestion made by the respondent's representative that this member has demonstrated any bias in the present hearing, two-and-a-half days of which have now concluded. Further, there's been no suggestion of any direct interest or connection between this member and this case or the parties before the tribunal. The respondent's representative instead relies on the media articles, which would suggest a number of things: First, that this member has represented clients who are members of minority groups enumerated in the Canadian Human Rights Act, including gay and lesbian clients; that this member has made public comments in support of minority groups enumerated in the Canadian Human Rights Act, including the rights of gays and lesbians; third, that the member herself may be a member of the minority group enumerated in the Canadian Human Rights Act and in particular, may be a lesbian; finally, that this member made a comment in relation to a private member's Bill considered by the Alberta Legislative Assembly. The respondent's representative identified that, in particular, the following comment is particularly indicative of bias, and that is, People are allowed to have their private opinions, but they are not allowed to discriminate in a public sphere. So first with respect to the law, and we've canvassed that this morning. The law with respect to an apprehension of bias addresses a concern that's central. It is central to the administration of justice that parties to an adjudication are entitled to a hearing by an adjudicator who is fair and who is impartial. The tests for assessing allegations of bias or apprehension thereof have been set out clearly by the Courts. But first, there's an important distinction to be drawn, and that is drawn in the cases between judicial neutrality and judicial impartiality. The former, judicial neutrality, is simply not possible. The latter, judicial impartiality, is critical to the fair administration of administrative process. Justices L'Heureux-Dubé and McLachlin in the decision of R v. RDS, 1997, 3 SCR, 484, discuss at length a very important, critical distinction between these two concepts, and I am turning to page 34 of that decision. I am going to read some of it, because it is particularly critical to this determination. Madam Justice L'Heureux-Dubé and McLachlin identifies as follows: In order to apply the test -- and this is the test for an apprehension of bias -- it is necessary to distinguish between the impartiality which is required of all judges and the concept of judicial neutrality. The distinction which would draw that is reflected in the insightful words of Benjamin N. Cardozo in the Nature of the Judicial Process, at page 12 and 13 and 167, where he affirmed the importance of impartiality while at the same time recognizing the fallacy of judicial neutrality. Mr. Cardozo is quoted as follows: There is in each of us the stream of tendency, whether you choose to call it philosophy or not, which gives coherence and direction to thought and action. Judges cannot escape that current any more than other mortals. All their lives, forces which do not recognize and cannot name have been tugging at them – inherited instincts, traditional beliefs, acquired convictions -- and the resultant is an outlook on life, a conception of social needs. In this mental background, every problem finds its setting. We may try to see things as objectively as we please. Nonetheless, we can never see them with any eyes except our own. Deep below consciousness are other forces, the likes and dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions, which make the person, whether he or she be litigant or judge. Cardozo recognised that objectivity was an impossibility, because judges, like all other humans, operate from their own perspectives. As the Canadian Judicial Counsel noted in commentaries on judicial conduct, there is no human being who is not the product of every social experience, every process of education, and every human contact. What is possible and desirable is impartiality. And it is impartiality that is requirement of this proceeding. That this member has engaged in advocacy for human rights may lead one to conclude that she, like others, is not neutral. It does not, however, lead to the conclusion that she is impartial. And now we need to turn to the test, and the test for an apprehension of bias and the manner in which that is to be analysed, I am going to start, again, with the decision of .R v. RDS, and this is at page 12. And the test is that of an informed reasonable person. So the test is: What would an informed person, viewing the matter realistically and practically and having thought the matter through, conclude? Would he or she think that it is more likely than not that the decision-maker, consciously or unconsciously, would not decide fairly? I am also instructed by the reasons of the Federal Court of Appeal in Zündel at Paragraph 36 that: The reasonable person must bean informed person with knowledge of all relevant circumstances, including the traditions of integrity and impartiality that form part of the background and apprised also of the fact that impartiality is one of the duties the judges swear to uphold. The threshold is high. The onus of establishing an apprehension of bias is on the one alleging. And further in the Zündel decision is they have referenced to an Ontario Court of Appeal decision in E.A. Manning Limited, and it is identified there that it must be presumed in the absence of any evidence to the contrary that the commissions will act fairly and impartially in discharging their adjudicative responsibilities and will consider particular facts and circumstances of each case. Before we turn to the facts, the allegations in this particular application, we need to ask ourselves, Would these facts in each of them make a reasonable person believe that this member will not fairly and impartially consider all of the evidence and will not fairly and impartially apply the relevant law to the evidence as it is found? And we must consider the instructions from the Supreme Court of Canada in R. v. RDS about the nature of that reasonable person. And at Paragraph 48, the reasonable person is a person who approaches the question of whether there exists a reasonable apprehension of bias with a complex and contextualized understanding of the issues in the case. The reasonable person is cognisant of the social dynamics -- and I am paraphrasing with the word social -- social dynamics in a local community and is a member of the Canadian community and supportive of the principles of equality. That having been said, let us turn to the facts alleged by the respondent's representative and ask whether this reasonable person, the reasonable person that Madam Justice L'Heureux‑Dubé and McLachlin identified for us. Would this reasonable person think that the member would not, for reason of bias, be able to decide fairly and impartially the matter before the tribunal? First, there was a suggestion that this member may be a member of one of the five grounds upon which this complaint is brought. Is that a fact that would lead a reasonable person, our reasonable 1 person, to decide that there be an apprehension of bias? In my view, this reasonable person would not conclude that a person's identity compromises their ability to consider this matter fairly and impartially. And, frankly, to find otherwise would be profoundly contrary to the principles of the quality paramount under this act, the Canadian Human Rights Act and, according to Madam Justices L'Heureux-Dubé and McLachlin, the very fabric of Canadian society. Second, that the member may have represented clients who are members of minority groups protected under the Canadian Human Rights Act including gays and lesbians, would our reasonable person conclude bias from that fact? And it is hard -- I cannot see how that could possibly give rise to an apprehension of bias as adjudicators who either are or have been lawyers represent clients. The identity of those clients cannot reasonably be found to dictate, compromise, or express an adjudicator's ability to be impartial with respect to the facts in front of them. And I was particularly struck by Mr. Vigna's observation that criminal lawyers would have a very difficult time becoming judges at all if they were identified with their clients. Thirdly, that the member made public comment in support of human rights, support of the rights of gays and lesbians in particular. And, again, this may go to neutrality. Again, there's an important distinction: This may go to neutrality, not to impartiality. And, further, the laws in this country, including the Canadian Human Rights Act itself, are expressly intended to foster the rights of minority groups. Comments consonant with this fundamental principle of Canadian society cannot, in my view, amount to a reasonable apprehension of bias. And, finally, with respect to the particular comment, People are allowed to have their private opinions, but they are not allowed to discriminate in a public sphere, that is a correct articulation of the laws of Canada as articulated in the Canadian Human Rights Act and in the Human Rights Act of other provinces in this country. And so, again, such a statement cannot give rise to an apprehension of bias. For those reasons, the motion is denied. Signed by Julie Lloyd Tribunal Member Edmonton, Alberta May 25, 2006 Canadian Human Rights Tribunal Parties of Record Tribunal Files: T1087/6805 et T1088/6905 Style of Cause: Richard Warman v. Glenn Bahr et Western Canada for Us Ruling of the Tribunal Dated: May 25, 2006 Date and Place of Hearing: May 25, 2006 (Oral decision given to the parties on May 25, 2006) Edmonton, Alberta Appearances: Richard Warman, for himself Giacomo Vigna, for the Canadian Human Rights Commission Paul Fromm, for the Respondent Glenn Bahr No one apperaing, for the Respondent Western Canada For Us

2006 CHRT 47

CHRT

Vilven v. Air Canada

en

2006-10-20

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6715/index.do

2023-12-01

Vilven v. Air Canada Collection Canadian Human Rights Tribunal Date 2006-10-20 Neutral citation 2006 CHRT 47 File number(s) T1079/6005 Decision-maker(s) Sinclair, Grant, Q.C. Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DROITS DE LA PERSONNE GEORGE VILVEN Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - AIR CANADA Respondent AMENDED RULING 2006 CHRT 47 2006/10/20 MEMBER: J. Grant Sinclair [1] George Vilven has filed a complaint with the Canadian Human Rights Commission dated August 5, 2004, alleging that Air Canada has discriminated against him on the ground of age, contrary to ss. 7 and 10 of the Canadian Human Rights Act. [2] By application dated June 29, 2006, Air Canada Pilots Association applied to the Tribunal for interested party status. [3] The Commission and the Complainant (with a caveat) consent to this application. Air Canada's position is that ACPA should be added as a respondent. [4] The Tribunal also received an application dated June 20, 2006, from Fly Past 60 Coalition, a group of pilots or former pilots of Air Canada, asking to be added as an interested party to the complaint. [5] The Commission consented to the application by the Fly Past 60 Coalition. Air Canada opposed it as did ACPA. ACPA did not feel in any way constrained in opposing the Coalition's application even though it has no status or standing to do so. [6] I have reviewed the two applications and the responses of the parties to the complaint. I have concluded that ACPA should be added as an interested party. It is a signatory to the collective agreement with Air Canada which contains provisions relating the mandatory retirement of Air Canada pilots. As such, it has an obvious interest in these proceedings. [7] I've also concluded that Fly Past 60 Coalition should be added as an interested party. In this regard, I refer to and adopt the reasoning of Commission counsel in his letter of July 12, 2006 setting out the reasons why the Commission supports the Coalition's application. [8] Both ACPA and the Fly Past 60 Coalition will be permitted to fully participate in the hearing of this complaint before the Tribunal, including the introduction of evidence and cross-examination of witnesses, to the extent that such participation is not duplicative of the evidence and submissions of the Commission, the Complainant or Air Canada. [9] The schedule for disclosure for the Complainant, the Commission and Air Canada will remain the same. The schedule for APCA and Coalition disclosure will be as set out in their applications. Any request for changes in the disclosure schedules will be dealt with at the conference call on September 8, 2006. Signed by J. Grant Sinclair OTTAWA, Ontario October 20, 2006 PARTIES OF RECORD TRIBUNAL FILE: T1079/6005 STYLE OF CAUSE: George Vilven v. Air Canada RULING OF THE TRIBUNAL DATED: October 20, 2006 APPEARANCES: George Vilven For himself Daniel Pagowski For the Canadian Human Rights Commission Thomas Brady For the Respondent Steve Waller For the Air Canada Pilots Association Raymond Hall Reference: 2006 CHRT 35 For the Fly Past 60 Coalition

2006 CHRT 48

CHRT

Warman v. Lemire

en

2006-10-26

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6716/index.do

2023-12-01

Warman v. Lemire Collection Canadian Human Rights Tribunal Date 2006-10-26 Neutral citation 2006 CHRT 48 File number(s) T1073/5405 Decision-maker(s) Hadjis, Athanasios Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE RICHARDWARMAN Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - MARC LEMIRE Respondent - and - ATTORNEY GENERAL OF CANADA CANADIAN ASSOCIATION FOR FREE EXPRESSION CANADIAN FREE SPEECH LEAGUE CANADIAN JEWISH CONGRESS FRIENDS OF SIMON WIESENTHAL CENTER FOR HOLOCAUST STUDIES LEAGUE OF HUMAN RIGHTS OF B'NAI BRITH Interested Parties RULING 2006 CHRT 48 2006/10/26 MEMBER: Athanasios D. Hadjis [1] The Respondent, Marc Lemire, has filed a motion requesting an order that the Complainant, Richard Warman, be added as a respondent in the present case. [2] According to Mr. Warman's human rights complaint, dated November 23, 2003, Mr. Lemire is the owner of an Internet website called freedomsite.org, on which one could allegedly view hate messages (i.e. material that is proscribed under s. 13 of the Canadian Human Rights Act). Mr. Warman also alleges in the complaint that Mr. Lemire posted some of this material himself. [3] With the present motion, Mr. Lemire is in effect attempting to introduce his own human rights complaint against Mr. Warman. He is claiming that Mr. Warman wrote and posted hate messages of his own on the very same website, freedomsite.org. Mr. Lemire argues that Mr. Warman should therefore be added as an additional respondent in the present case. Does the Tribunal have the authority to add a party to an existing inquiry? [4] Although the Act does not explicitly state that the Tribunal has the power to order the addition of a party to a proceeding before it, s. 48.9(2)(b) provides that the Chairperson of the Tribunal may make rules of procedure governing the addition of parties and interested persons to the proceedings. [5] In an oral ruling in Desormeaux v. Ottawa-Carleton Regional Transit Commission (October 2, 2002), Ottawa, T701/0602 (C.H.R.T.), referred to in Brown v. National Capital Commission, 2003 CHRT 43 and in Syndicat des employés d'exécution de Québec-Téléphone, section locale 5044 du SCFP v. Telus Communications (Québec) Inc., 2003 CHRT 31 (Telus), then Tribunal Chairperson Mactavish observed how s. 48.9(2)(b) of the Act specifically contemplates the addition of both parties and interested persons to existing Tribunal inquiries. Given the wording of this provision, she concluded that Parliament's intention was to empower the Tribunal to add parties to an inquiry on motion where the Tribunal deems it appropriate. [6] Chairperson Mactavish issued a subsequent oral ruling in the same case, on October 3, 2002, in which she noted that the legislative context surrounding the Tribunal's discretionary power to add parties suggests that any such discretion should be exercised with caution. The addition of a party during the course of an inquiry may deprive the new respondent of the benefit of certain procedural protections. These would include the opportunity to persuade the Commission during its investigation process that it should refuse to deal with the complaint because, for instance, the complaint is without merit or it is based on acts or omissions that occurred more than one year before the receipt of the complaint (s. 41(1)(e)). Thus, the Tribunal found that although the legislative scheme permits the Tribunal to add a respondent, the situations under which this will be permitted are somewhat limited in view of the loss of procedural protections that could result from such an action. [7] The Tribunal in Telus, at para. 30, endorsed the cautious approach articulated in Desormeaux, and concluded that the forced addition of a new respondent would be appropriate where it is established that the presence of the new party is necessary to dispose of the complaint before the Tribunal and that it was not reasonably foreseeable, once the complaint was filed with the Commission, that the addition of a new respondent would be necessary to dispose of the complaint. As was noted in Brown, at para. 20, this is accepted as the state of the current law on the question. Is the addition of Mr. Warman as a respondent necessary to dispose of the complaint that is before the Tribunal? [8] Mr. Lemire has not convinced me that the addition of Mr. Warman as a respondent is necessary to dispose of the complaint that is before me at this time. The complaint alleges that Mr. Lemire is the registered owner of the freedomsite.org website and that he has discriminated against persons or groups of persons on prohibited grounds by repeatedly communicating hate messages, in his capacity as webmaster and owner of this Internet website, and through his own personal postings on the website. [9] In what way can the inclusion of Mr. Warman as an additional respondent assist in the disposition of this complaint? Mr. Lemire's only argument on this point would appear to be that Mr. Warman posted his alleged hate messages as a way to entrap persons like Mr. Lemire, against whom he has subsequently laid human rights complaints. I gather that Mr. Lemire's point is that by making these alleged postings on the website, Mr. Warman somehow enticed others to post hate messages of their own. [10] It appears to me that this argument is being presented as a defence to the allegations of discriminatory practices that have been made in the complaint. If there is any merit under the Act to such a defence, it would seem to me that it could be raised by a respondent whether or not the alleged inciter to commit the discriminatory practice is named as an additional respondent in the case. [11] Mr. Lemire claims to find support for his position in the Brown ruling, where the Tribunal allowed the addition of a third party to a complaint. However, the circumstances of the Brown case are very different from those of the present case. The complainant, Mr. Brown, was disabled. He had alleged that the National Capital Commission (NCC) had discriminated against him by failing to provide wheelchair access to a park in Ottawa that was within the responsibility of the NCC. He claimed that the only available access was via a long set of steps, known as the York Street Steps. During the course of the hearing, evidence was adduced suggesting that a possible solution to the problem was to provide public access to an elevator situated in a nearby building owned by the federal Department of Public Works and Government Services (Public Works). The Commission made a motion requesting that the Tribunal order the addition of Public Works as a co-respondent. [12] The Tribunal held that in the event that Mr. Brown's complaint was ultimately found to be substantiated, the addition of Public Works might be necessary in order to implement a viable solution to the problem arising from the York Street Steps. Given the evidence that the elevator in Public Works' building could provide the access needed to remedy the discriminatory practice, Public Works would have had an indispensable part to play in resolving any question of discrimination (Brown at para. 43). In the facts of the Brown case, therefore, the Tribunal faced the real possibility that without the added party's full participation in the case, the Tribunal would have been unable to order an effective remedy to the discriminatory practice. [13] The same cannot be said of the present case. It has not been demonstrated to me how the Tribunal's ability to issue effective remedial orders against Mr. Lemire under the Actwill be hampered by not adding Mr. Warman as a respondent in the present case, nor has it been demonstrated that the participation of Mr. Warman as a respondent is necessary or indispensable to the resolution of any question of discrimination raised in Mr. Warman's complaint. [14] If Mr. Lemire is of the view that Mr. Warman has contravened the Act, he is free to file his own human rights complaint with the Commission. The Tribunal is, however, seized at this time with a complaint filed by Mr. Warman against Mr. Lemire. The addition of Mr. Warman as a respondent is not necessary to dispose of the complaint. Mr. Lemire's motion is dismissed. [15] Finally, I note that a good portion of the parties' submissions on the motion dealt with the technical workings of the website and the alleged evidence of Mr. Warman's visits to the website's message board. Given my findings on the inappropriateness of adding Mr. Warman as a respondent in the present case, these questions need not be addressed at this time. Signed by Athanasios D. Hadjis OTTAWA, Ontario October 26, 2006 PARTIES OF RECORD TRIBUNAL FILE: T1073/5405 STYLE OF CAUSE: Richard Warman v. Marc Lemire RULING OF THE TRIBUNAL DATED: October 26, 2006 APPEARANCES: Richard Warman For himself Giacomo Vigna / Ikram Warsame For the Canadian Human Rights Commission Barbara Kulaszka For the Respondent

2006 CHRT 49

CHRT

Mowat v. Canadian Armed Forces

en

2006-11-15

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6717/index.do

2023-12-01

Mowat v. Canadian Armed Forces Collection Canadian Human Rights Tribunal Date 2006-11-15 Neutral citation 2006 CHRT 49 File number(s) T822/7203 Decision-maker(s) Sinclair, Grant, Q.C. Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE DONNA MOWAT Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADIAN ARMED FORCES Respondent RULING MEMBER: J. Grant Sinclair 2006 CHRT 49 2006/11/15 (i) Mowat - Ruling on legal expenses [1] In her complaint dated June 15, 1998, filed with the Canadian Human Rights Commission, Donna Mowat alleged that the Canadian Armed Forces (CAF) discriminated against her on the grounds of sex, by adversely differentiating against her in employment and refusing to continue her employment with the CAF, contrary to s. 7 of the Canadian Human Rights Act; and by failing to provide her with a harassment free workplace contrary to s. 14 of the Act. Included in her harassment complaint is an allegation of sexual harassment. [2] Ms. Mowat also alleged retaliation under s. 14.1 of the Act. This allegation was heard as a preliminary motion and dismissed by the Tribunal. [3] In her Statement of Particulars filed with the Tribunal, Ms. Mowat claimed compensation of $430,685 (not including unspecified amounts for CPP contributions, CAF pension, mental suffering and punitive bad faith damages) and excluding legal costs. [4] The Tribunal found that Ms. Mowat's sexual harassment complaint was substantiated and awarded her $4,000 plus interest for pain and suffering. The Tribunal dismissed all of her other allegations of discrimination. [5] The hearing of Ms. Mowat's complaint consumed about 6 weeks of hearing time. The case consumed over 4,000 pages of transcript evidence. In addition, there were more than 200 exhibits filed with the Tribunal. [6] The Tribunal noted in its decision that, apart from Ms. Mowat's allegation of sexual harassment, the case was marked by a fundamental lack of precision in identifying the theory of her case. The Tribunal also noted that it would have been very helpful if she had particularized the facts upon which she was relying and had identified the nexus between these facts and the prohibited grounds of discrimination. [7] Clearly the great majority of the evidence and exhibits introduced by Ms. Mowat related to the allegations of adverse treatment in employment, failure of the CAF to continue to employ her and harassment (other than sexual harassment) all of which were all dismissed. [8] Ms. Mowat now seeks to be reimbursed for her legal expenses. There are three legal accounts submitted to the Tribunal by Feehely, Gastaldi, Ms. Mowat's counsel, covering the period of March 27, 2003 to October 24, 2005. These accounts total $196,313. Ms. Mowat also claims $800 for legal fees paid to Gahrns, Laliberté for legal services preceding her June 15, 1998 complaint. [9] Both parties made oral and written submissions to the Tribunal on the question of legal costs. Initially, Ms. Mowat claimed costs on a substantial indemnity basis, or alternatively, on a partial indemnity scale. In her submissions to the Tribunal, she advised that she did not expect 100%, or even 75% of her legal fees, but did expect to be awarded reasonable costs whether she was totally or partially successful. [10] CAF disputed the Tribunal's jurisdiction to award costs. If, however, the Tribunal did find jurisdiction, CAF argued that Ms. Mowat be denied any legal costs or that her costs be strictly limited. This is because Ms. Mowat was for the most part unsuccessful in her allegations. Further, the hearing was unnecessarily prolonged and complicated as a result of a lack of clear articulation of her complaints. Jurisdiction of the Tribunal to Award Legal Costs [11] If the Tribunal has jurisdiction to award legal costs, this jurisdiction must be found in ss. 53(2)(c) or 53(2)(d) of the Act, whereby the Tribunal can order compensation . . . for any expenses incurred by the victim as a result of the discriminatory practice. [12] There are five Federal Court decisions dealing with whether this Tribunal can order compensation for legal expenses under the Act. But there is no unanimity on this question. Chronologically the cases are as follows. [13] Canada (Attorney General) v. Thwaites, (1994) 3 F.C. 38 involved a claim under s. 53(2)(c) for reasonable costs of counsel including costs for actuarial services. The Court agreed with the Tribunal that the complainant should be given these costs. The ordinary meaning of expenses incurred should not be restricted. Nor need the terms costs/costs of counsel be specifically identified in the legislation. The words of the Act should be given their ordinary meaning unless the context requires otherwise. [14] After Thwaites came Canada (Attorney General) v. Lambie, (1996), 124 F.T.R. 303. In Lambie, at issue was compensation under s. 53(2)(d) for leave and time spent by the complainant to develop and prepare his complaint. The Federal Court rejected the claim for compensation, saying that the word expense can only cover time spent in preparation in exceptional circumstances. There was no evidence that the leave and preparation time in this case was exceptional. Parliament could have easily included in the Act the jurisdiction to award costs, but did not do so. [15] The Federal Court in Canada (Attorney General) v. Green (2000), 183 F.T.R. 161, came to essentially the same conclusion as it did in Lambie. The Tribunal had ordered the complainant be compensated for the costs of legal advice and there was evidence that the complainant had retained professional services to assist in the preparation of submissions to the CHRC for its deliberation in its decision-making process. The Court reasoned that s. 53(2)(d) makes no mention of legal costs and this indicates that Parliament did not intend the Tribunal to have the power to award legal costs. [16] In both Attorney General of Canada v. Stevenson, (2003), FCT 341 and Attorney General of Canada v. Brooks, (2006), FC 500, the Federal Court concluded the opposite, and agreed with Thwaites. [17] The complainant in Stevenson asked under s. 53(2)(c) for costs of counsel consulted with regard to the possibility of filing a complaint with the CHRC and for the costs of legal assistance for submissions made to the CHRC. [18] The Federal Court concluded that legal expenses incurred when a complainant consults a lawyer regarding the well-foundedness of his complaint are entirely justifiable. And counsel costs/legal costs incurred for filing a complaint constitute expenses incurred by the victim as a result of the discriminatory practice. [19] The absence of the term legal costs or costs of counsel in s. 53(2)(c) is not determinative. The language of the section is broad enough to include the power to award legal costs. As support for this position, the Court referred to s. 50(1) of the Act saying that it clearly contemplates that a complainant can retain counsel for direction and advice. [20] As for Lambie, Stevenson interpreted Lambie as deciding that the Tribunal does have jurisdiction to award legal costs, but only in exceptional cases. The leave and time compensated there did not amount to exceptional circumstances. [21] Dealing with Green, the Stevenson Court noted that there was no finding in that case whether there were any exceptional circumstances to justify the claim. [22] Also of importance in Stevenson is the Court's acknowledgement of the underlying policy considerations enunciated in the Tribunal decision in Nkwazi v. Correctional Services Canada, (2001) C.H.R.D. No. 29 (Q.L.). [23] There the Tribunal concluded that there are compelling policy considerations relating to access to the human rights adjudication process which favour the adoption of the Thwaites approach. Interpreting the term `expenses' in the narrow and restricted way that Lemieux J. did in Green, so as to deny victims of discriminatory practices the right to recover their reasonable legal expenses associated with the pursuit of their complaints would be contrary to the public policy underlying the Canadian Human Rights Act. [24] In Brooks, the claim was under s. 53(2)(c) for legal costs relating to litigation before the Tribunal. In its decision, the Court referenced the extensive analysis of the case law undertaken by the Stevenson Court and agreed with Stevenson that there is no reason to restrict the ordinary meaning of any expenses incurred so as to exclude expenses of litigation, prosecution or other legal transaction. [25] The Court rejected the suggestion that Stevenson should be read as allowing only the legal costs leading up to legal action. The Tribunal can award not only those costs, but also costs for the ongoing legal expenses of litigation. [26] Again in Brooks, the Court referred to and in my view, endorsed, the policy considerations set out in the Brooks Tribunal decision. Namely, that the Tribunal has the obligation to protect the efficacy and integrity of the Canadian Human Rights Act. The entire purpose of the Act is to provide a meaningful remedy for those who have suffered discrimination. I do not see how this is possible, at least in a case where the Commission decides not to appear, without an award of costs... CONCLUSION ON JURISDICTION [27] The predominance of authority from the Federal Court (Thwaites, Stevenson and Brooks) is that the Tribunal has the power to award legal costs under s. 53(2) of the Act. Even Lambie, according to Stevenson, recognized that the Tribunal has jurisdiction to award legal costs in exceptional circumstances. [28] On the basis of these authorities, I conclude that the Tribunal has the jurisdiction to award legal costs under s. 53(2)(c) of the Act. [29] But it is not only from these decisions that I reach this conclusion. I also rely on the policy considerations set out in the Tribunal's decisions in Nkwazi and Brooks that were specifically referred to by the Federal Court in Stevenson and Brooks. I agree that, absent the power in the Tribunal to award legal costs where a complaint of a discriminatory practice is substantiated, such a finding would amount to no more than a pyrrhic victory for the complainant. A result of this nature would frustrate the remedial provisions and purpose of the Act. WHAT IS A REASONABLE AWARD OF COSTS IN THIS CASE? [30] Section 53(2) requires that the legal costs must be incurred as a result of the discriminatory practice. In this case, the practice in question was the sexual harassment of Ms. Mowat by the CAF. The case law establishes that the Tribunal can award pre-hearing legal costs and costs for ongoing legal representation. [31] In determining the legal costs award, I have considered three sources: the description of the legal services set out in the legal accounts submitted for Ms. Mowat; the quantity of evidence and number of exhibits submitted at the hearing relating to the sexual harassment allegation, relative to the total evidence and exhibits for the dismissed allegations; and the Bill of Costs submitted by each party calculated on a party/party basis. [32] I am mindful that the Tribunal in Brooks used as a guideline the Federal Court Rules on the assessment of costs, specifically Rule 400(3). [33] On the question of the assessment of costs (not the jurisdiction question) the Federal Court quashed the Tribunal's decision. The reason was that the Tribunal, having referenced the Federal Court Rules, failed to take into account written offers of settlement of the respondent which it is required under to do Rules 400(3) and 420(2). [34] However, I do not read anything in the Federal Court's decision in Brooks that requires the Tribunal to apply or even reference the Federal Court Rules when making an award of costs. I have not done so in this case. [35] On the basis of the sources referred to above and the parties' oral and written submissions, I award Ms. Mowat the amount of $47,000 for legal costs under s. 53(2)(c) of the Act. [36] Ms. Mowat asked for interest on the award of costs. Interest is not an expense under s. 53(2) of the Act. The Tribunal, under s. 53(4), has the discretion to make such an award and may do so to make whole the victim of a discriminatory practice. It is not clear from the evidence whether Ms. Mowat has paid any of the legal accounts which she has received (other than the $800 account from Gahrns, Laliberté) or has paid any interest on outstanding legal accounts. Accordingly, Ms. Mowat's interest claim to the date of this decision is denied. [37] However, I do order that interest be paid on the costs award from the date of this decision to the date of payment of the award, calculated in accordance with Rule 9(12)(a) of the Tribunal Rules of Procedure. Signed by J. Grant Sinclair November 15, 2006 OTTAWA, Ontario PARTIES OF RECORD TRIBUNAL FILE: T822/7203 STYLE OF CAUSE: Donna Mowat v. Canadian Armed Forces RULING OF THE TRIBUNAL DATED: November 15, 2006 APPEARANCES: Jerry W. Switzer For the Complainant No one appearing For the Canadian Human Rights Commission Sandra Nishikawa Derek Allen For the Respondent

2006 CHRT 5

CHRT

O'Connor v. Canadian National Railway

en

2006-01-31

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6475/index.do

2023-12-01

O'Connor v. Canadian National Railway Collection Canadian Human Rights Tribunal Date 2006-01-31 Neutral citation 2006 CHRT 5 File number(s) T987/10704 Decision-maker(s) Jensen, Karen A. Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE KEN O'CONNOR Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADIAN NATIONAL RAILWAY Respondent RULING 2006 CHRT 05 2006/01/31 MEMBER: Karen A. Jensen I. BACKGROUND II. ISSUE III. ANALYSIS A. The Tribunal's Jurisdiction to Deal with the Motion B. The Doctrine of Res Judicata C. The Two Branches of Res Judicata D. Issue Estoppel: The Test (i) Same Questions in Both Proceedings (ii) Final Judicial Decision (iii) The Parties, or Their Privies, are the Same E. Abuse of Process F. The Discretionary Factors IV. ORDER [1] On September 27, 2000, Ken O'Connor filed a complaint with the Canadian Human Rights Commission (the Commission) alleging that the Canadian National Railway Company (CN) had violated s. 7 of the Canadian Human Rights Act by discriminating against him in the course of his employment on the basis of his disability. [2] On October 4, 2004, the Commission referred the complaint to the Tribunal for further inquiry. CN is now requesting that the Tribunal exercise its discretion to refuse to hear Mr. O'Connor's complaint on the basis that the matter has already been conclusively determined at a grievance arbitration. CN invokes the doctrines of issue estoppel and abuse of process on this motion. I. BACKGROUND [3] Mr. O'Connor began working for CN at Capreol, Ontario in April of 1980 as a Track Maintainer. In 1981, he suffered a lower back injury while at work. As a result of a serious reoccurrence of that injury in 1987, he subsequently underwent two back operations. [4] Mr. O'Connor was assessed by the then Workers' Compensation Board (now the Workers' Insurance and Safety Board (WSIB) and, in 1992, he was granted a 20% permanent partial disability pension (PPD pension). This pension carried with it the following permanent work restrictions: Lifting of weights limited to 10 kilograms; No repetitive bending or twisting, especially against resistance; No strenuous pulling or pushing; Limited low level work; Opportunity to change positions as required. [5] Pursuant to an arrangement with the Workers' Compensation Board, CN paid the pension directly to Mr. O'Connor. [6] From 1990 to 1995, Mr. O'Connor was provided with upgrading and retraining at Cambrian College through WSIB's Vocational Rehabilitation Services. As a result of his retraining, Mr. O'Connor found employment, for a short time as an assistant in an addiction/detoxification centre. According to Mr. O'Connor, however, he was unable to find full-time work in this area that was less physically demanding than the duties of his position with CN. [7] In July, 1997, Mr. O'Connor was told by his family physician that he was fit to return to work at CN without restrictions. Armed with a medical card attesting to his fitness, Mr. O'Connor requested that CN put him back to work. A Functional Analysis Evaluation completed in August, 1998, confirmed that there were no physical restrictions preventing Mr. O'Connor from returning to his previous position of track maintenance/foreman on a full-time, full duty basis. [8] This is where a wrinkle appears in the case. At the time of his request, CN was still paying Mr. O'Connor a permanent partial disability pension (PPD pension) based upon WSIB's determination that he had permanent work restrictions. Apparently, as a result of a WSIB policy, these restrictions and the requirement that CN pay Mr. O'Connor a PPD pension could not be lifted under any circumstances. [9] In February 2000, CN's physician refused to recommend Mr. O'Connor's reinstatement for two reasons. Firstly, he expressed concern that a full return to work was incompatible with the permanent WSIB restrictions for which Mr. O'Connor continued to receive a pension. Secondly, CN's physician was concerned about the impact of the pain medication that Mr. O'Connor was taking on his ability to perform his work safely. [10] Based on the opinion of CN's company physician, CN refused to reinstate Mr. O'Connor into service. However, he was subsequently offered several positions which were deemed to be consistent with his WSIB restrictions. Mr. O'Connor did not accept these offers. [11] In September 2000, Mr. O'Connor filed a complaint with the Canadian Human Rights Commission alleging that, in failing to reinstate him in his former position and to accommodate his disability, CN had discriminated against him. [12] Prior to the filing of his human rights complaint, Mr. O'Connor's union had filed a grievance against CN, citing CN's failure to accommodate Mr. O'Connor's disability and violations of the collective agreement. That grievance was heard on January 13, 2004 by Mr. Michel Picher of the Canadian Railway Office of Arbitration. [13] Mr. Picher subsequently rendered a decision in which he dismissed the grievance, stating that CN was justified in limiting the positions for which Mr. O'Connor was eligible to those that fit his WSIB restrictions. He also held that CN had discharged its duty to accommodate Mr. O'Connor. [14] On October 4, 2004 the Canadian Human Rights Commission referred Mr. O'Connor's complaint to the Tribunal. After some preliminary disclosure and exchange of documentation had taken place between the parties, CN brought a motion to have the complaint dismissed on the basis of res judicata and abuse of process. II. ISSUE [15] The sole issue to be determined in this motion is whether the complaint should be dismissed on the basis of the doctrines of res judicata or abuse of process. [16] For the reasons that follow, I find that both doctrines apply in the instant case. Moreover, I find that, in the circumstances of the case, there is no reason to exercise my discretion to refuse to apply the doctrines. Therefore, Mr. O'Connor's complaint against CN is dismissed. III. ANALYSIS A. The Tribunal's Jurisdiction to Deal with the Motion [17] The Canadian Human Rights Commission argues that the Tribunal does not have jurisdiction to entertain CN's motion since the Commission has effectively ruled on this issue. CN's arguments regarding the doctrines of res judicata and abuse of process were squarely before the Commission when it decided to refer the complaint to the Tribunal. Therefore, the Tribunal cannot rule on the motion without sitting in review of the Commission's decision, a function which is within the exclusive purview of the Federal Court. [18] I disagree with the Commission's arguments in this regard. In Canada (Human Rights Commission) v. Canada Post Corp. 2004 FC 81 at para.10 (Cremasco), the Federal Court (Trial Division) held that when the Tribunal rules on a res judicata motion, this does not constitute a review of the Commission's decision to refer the complaint to the Tribunal. The issue on a res judicata motion is whether it would be an abuse of the Tribunal's process to rehear a matter that has been determined in another forum. That is quite a different matter from a motion asking the Tribunal to consider whether it was an abuse of the Commission's process to have referred a complaint that is, for example, out of time (International Longshore & Warehouse Union (Marine Section), Local 400 v. Oster, [2002] 2 F.C. 430 (T.D.)). [19] It is true that in the Cremasco case, the Court found that the question of abuse of process was not squarely before the Commission when it decided to refer the matter to the Tribunal. In my view, however, the Court's decision did not hinge on this issue. Rather, the key to the Court's decision in Cremasco is that the Tribunal, as master of its own process, has an obligation to ensure that its processes are not abused. If the circumstances of the case are such that it would be an abuse of process or contrary to the interests of justice for the case to be heard by the Tribunal, then the Tribunal may refuse to hear the case even if the Commission has referred it to the Tribunal. B. The Doctrine of Res Judicata [20] The doctrine of res judicata has two common rationales. The first is the need for finality. The second is that a party should not be vexed twice by the same cause (Cremasco v. Canada Post Corporation 2002/09/30 - Ruling No. 1, at para. 50, aff'd 2004 FCA 363). [21] As the Supreme Court of Canada has repeatedly stated, the prompt, final and binding resolution of workplace disputes is of fundamental importance, both to the parties and to society as a whole (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324 2003 SCC 42, at para. 50). [22] However, there has also been some reluctance to apply the doctrine of issue estoppel to the determination of human rights complaints by tribunals such as this one. One of the primary concerns is that the dismissal of a complaint deprives the parties of the opportunity to have the merits of the case determined by a tribunal that specializes in the adjudication of human rights disputes (see, for example: Gohm v. Domtar Inc. (No. 1) (1989), 10 C.H.R.R. D/5968 at para. 43199 (Ont. Bd. Inq.); and Withler v. Canada (Attorney General) 2002 BCSC 820 at para. 42). Therefore, many have urged that caution and restraint be used in the application of the doctrine of res judicata to the adjudication of human rights complaints (Cremasco, supra, at para. 83, and Buffet v. Canada (Canadian Armed Forces) 2005 CHRT 16 at para. 40). [23] On two points, however, there is a clear consensus: the application of the doctrine is to be determined on a case-by-case basis, paying close attention to the particular facts of the case; and adjudicators have the discretion to refuse to apply the doctrine if doing so would work an injustice. C. The Two Branches of Res Judicata [24] There are two principal branches of the doctrine of res judicata. The first branch is known as issue estoppel. Issue estoppel applies where there are common issues in the two proceedings. The issues in question in the second proceeding must have been necessary to the decision in the first proceeding. Depending on the nature of the issue in respect of which the estoppel is being raised, issue estoppel may bar relitigation of only a discrete issue or it may bar the second action in its entirety (Hough v. Brunswick Centres Inc., (1997) 9 C.P.C. (4th) 111 (Ont. Gen. Div.) at paras. 24 and 25). [25] The second branch of res judicata is known as cause of action estoppel. In the present case, the parties have not argued that cause of action estoppel applies. Therefore, I will confine my analysis to the application of issue estoppel. D. Issue Estoppel: The Test [26] The two-part test for the application of the doctrine of issue estoppel is now well-known: (1) the criteria for issue estoppel must be met; and (2) if the criteria are met, the Tribunal must determine, based on certain discretionary factors, whether it is appropriate, in the circumstances, to apply the doctrine (Danyluk v. Ainsworth Technologies Inc. [2001] 2 S.C.R. 460 at para. 33). [27] The criteria to be met for the application of issue estoppel are as follows: the same questions are being decided in both proceedings; the judicial decision which is said to create the estoppel is a final decision; and the parties, or their privies, are the same. (i) Same Questions in Both Proceedings [28] For this requirement to be met, the determination of the issue in the first litigation must have been necessary to the result (Minott v. O'Shanter Development Co. (1999), 42 O.R. (3d) 321 (C.A.) at para. 23). In other words, issue estoppel covers fundamental issues determined in the first proceeding, issues that were essential to the decision. [29] Mr. O'Connor argues that the arbitrator's decision was limited to the question of whether he was entitled to exercise his seniority to return to his original position at full wages. In Mr. O'Connor's view, the arbitrator did not deal with the central issue in his human rights complaint which is the following: Was the condition imposed by CN that Mr. O'Connor must be assigned to occupations within the WSIB restrictions a bona fide occupational requirement as contemplated by the Canadian Human Rights Act? Mr. O'Connor also argues that the arbitrator's conclusion with respect to the accommodation issue was not essential to his final decision and, therefore, cannot be subject to issue estoppel. [30] In my view, while the arbitrator may not have characterized the issues in the same way as Mr. O'Connor has done in this motion and he may not have used the same terminology that the Tribunal would use in analyzing the complaint, the arbitrator dealt with substantially the same issues that would arise during an inquiry by the Tribunal. As the Ontario Court of Appeal stated in Rasanen v. Rosemount Instruments Ltd. (1994), 112 D.L.R. (4th) 683 at p. 703, a different characterization of the issues and process for analyzing them does not necessarily mean different questions. (See also: Barter v. Insurance Corporation of British Columbia 2003 BCHRT 9 at para. 45). [31] There were two principal issues that were raised during the arbitration proceedings: (1) whether Mr. O'Connor had been prevented from exercising his seniority rights under the Collective Agreement; and, (2) whether CN had failed to meet its legal duty under the Canadian Human Rights Act to accommodate Mr. O'Connor. [32] In his complaint, Mr. O'Connor states that CN discriminated against him on the basis of his disability by denying him the opportunity to return to his original position and by failing to accommodate him. Thus, with the exception of the reference to the collective agreement, the issues in both proceedings are framed in similar terms. [33] Were the specific issues that the arbitrator dealt with in arriving at his conclusion sufficiently similar to those that would be dealt with by the Tribunal to meet this part of the test? To answer that question, it is helpful to set out the issues that the Tribunal would consider in analyzing the complaint and then compare them to the issues addressed in the arbitrator's reasons. [34] In a hearing before this Tribunal, the onus would first fall upon Mr. O'Connor to establish a prima facie case that he was treated adversely by CN and that his disability, or perceived disability, was a factor in the adverse treatment. The burden would then shift to CN to lead credible evidence of a non-discriminatory explanation for its conduct. In that regard, one of the defenses that would be open to CN would be to prove that its actions were based on a bona fide occupational requirement (BFOR). To do this CN would be required to establish that: CN adopted the standard for a purpose rationally connected to the performance of the job; CN adopted the particular standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate and work-related purpose; and, the standard was reasonably necessary to the accomplishment of that legitimate work-related purpose in that it was impossible to accommodate employees sharing Mr. O'Connor's characteristics without imposing undue hardship on CN (B.C. (P.S.E.R.C.) v. B.C.G.S.E.U. [1999] 3 S.C.R. 3 (Meiorin). [35] Section 15(2) of the Canadian Human Rights Act provides that, in assessing undue hardship, the Tribunal will consider the health, safety and cost factors involved in the accommodation measures. [36] The Tribunal will also examine the extent to which the complainant cooperated with the employer's efforts to accommodate his disability. Generally speaking, employees are obligated to accept reasonable accommodation offers. Moreover, the employer's duty is discharged if a proposal that would be reasonable in all the circumstances is turned down (Central Okanagan School District No. 23 v. Renaud [1992] 2 S.C.R. 970 at para. 44). [37] Let us now look at how the arbitrator's decision jives with this analysis. The arbitrator began his reasons by acknowledging that there was a conflict between the medical evidence pointing to Mr. O'Connor's fitness to work without restrictions and the seemingly immutable WSIB restrictions. Thus, I think that the arbitrator tacitly acknowledged that either Mr. O'Connor was not disabled, but was being treated by CN as though he was disabled, or he was disabled and was being denied the right to return to his original position on that basis. I think it is clear from the arbitrator's reasons that he recognized that under either circumstance, CN had to justify its requirement that Mr. O'Connor be free from WSIB restrictions. [38] To that end, the arbitrator looked at the implications of refusing to accept the WSIB restrictions and simply placing Mr. O'Connor in his original position. He noted that if CN did this, it would still be required, in accordance with the WSIB award, to pay him his 20% PPD pension in addition to his full wages. The arbitrator noted, at one point in his decision, that CN had already paid hundreds of thousands of dollars to Mr. O'Connor in rehabilitation, retraining and disability benefits. Thus, in my view, it is implicit in the arbritator's decision that if Mr. O'Connor was not disabled, the employer had provided a good reason as to why he could not be placed in his original position: CN was bound by the WSIB decision and therefore, would be required to accommodate his restrictions and pay the PPD pension. It was unreasonable to expect the employer to pay both full wages and a PPD pension. [39] The arbitrator also considered the implications of accommodating Mr. O'Connor in his original position if he was, in fact, disabled as per the WSIB award. He noted that CN had understandable concerns that Mr. O'Connor might re-injure himself if he was returned to his original position. CN would then face the resulting costs of compensation for the re-injury. Furthermore, there was the issue of whether Mr. O'Connor's use of narcotics for pain relief would interfere with his ability to perform the functions of his work safely. Thus, the arbitrator concluded that it was not possible for CN to return Mr. O'Connor to his original position. [40] Finally, the arbitrator then looked at whether CN had discharged its obligation to accommodate Mr. O'Connor within his WSIB restrictions. He held that this was plainly not a case where the Company had acted in bad faith or sought to shirk its obligation to accommodate Mr. O'Connor in suitable employment. He noted that Mr. O'Connor had been offered two positions which were compatible with his work restrictions. However, Mr. O'Connor declined these positions because they were outside of Capreol, Ontario where he was living. Therefore, he found that Mr. O'Connor had not discharged his obligation under the law to participate in the accommodation process. [41] In my view, while the arbitrator did not explicitly mention the Meiorin test, the elements of the analysis and the findings that relate to each step in that test are all there in his reasons. The first part of the analysis is whether the requirement that Mr. O'Connor be free from the WSIB restrictions was rationally connected and necessary to the performance of the job. The arbitrator's conclusions regarding the safety and health implications of not following the WSIB restrictions would seem to address these issues. That is, the arbitrator recognized that CN had legitimate concerns that if it ignored the restrictions, there was a risk of re-injury. Moreover, there was the issue of the impact of pain medication on the safe performance of the job. [42] The second part of the test deals with whether CN could accommodate Mr. O'Connor in spite of the fact that he did not meet the requirement of being restriction-free. The arbitrator's conclusions with regard to the cost implications as well as the health and safety issues involved in returning Mr. O'Connor to his original position speak to the issue of accommodation to the point of undue hardship. In my view, it is implicit in the arbitrator's reasons that he thought it would create undue hardship for CN to accommodate Mr. O'Connor in his original position if he was still subject to the WSIB restrictions. This is the same issue that the Tribunal would be called upon to determine. [43] Moreover, the arbitrator's analysis of CN's efforts to accommodate Mr. O'Connor in positions that were within his WSIB restrictions involved a review of the factors that the Tribunal would consider. These include the existence of work in Mr. O'Connor's home location, the extent of Mr. O'Connor's participation in the process and the total cost of the accommodation efforts. The arbitrator's conclusion that Mr. O'Connor had not fulfilled his obligation to accept an offer of reasonable accommodation falls squarely within the analysis that would be undertaken by this Tribunal. Finally, the arbitrator's conclusion that CN had not failed its obligation to accommodate Mr. O'Connor directly deals with an issue that would arise in the Tribunal's inquiry into the complaint. [44] Therefore, in my view, it cannot be said that the arbitrator missed any of the essential issues in the human rights analysis. Neither can it be said that the issue of CN's accommodation of Mr. O'Connor was peripheral to the arbitrator's decision. In my view, the arbitrator's conclusion with regard to accommodation was integral to his decision. [45] For these reasons, I find that the issues in the arbitration proceeding were the same as those that would be examined in a hearing before the Tribunal. Therefore, the first requirement of the issue estoppel test has been met. (ii) Final Judicial Decision [46] It appears well settled that, for the purposes of the second element of the issue estoppel test, arbitration decisions constitute judicial decisions (see for example: Scotia Realty Ltd. And Olympia & York SP Corporation and Campeau Corporation (1992), 9 O.R. (3d) 414; Desormeaux v. Ottawa-Carleton Regional Transit Commission [2002] C.H.R.D. No. 22 at para. 28, aff'd 2005 FCA 311). Moreover, the arbitrator's decision is not under appeal and is, therefore, final. Accordingly, this aspect of the test is met. (iii) The Parties, or Their Privies, are the Same [47] In this case, like Smith, J. v. Canadian National Railway 2005 CHRT 22, the parties in the arbitration proceedings are clearly not the same as the parties before this Tribunal. However, when the parties to the proceedings are not the same, this aspect of the test may still be met if one party was the privy of another in the previous proceedings. [48] In order to be a privy, there must be a sufficient degree of common interest between the party and the privy to make it fair to bind the party to the determinations made in the previous proceedings. (Danyluk, supra, at para. 60). Decisions about whether there is a sufficient degree of mutual or common interest to say that one party was the privy of another must be made on a case-by-case basis (Smith, J. v. Canadian National Railway, supra, at para. 28). [49] In Smith v. CN, I stated that it is not possible to say that in all cases the union and the complainant are privies. Each fact situation must be examined on a case-by-case basis to determine whether the union and the complainant have sufficiently similar interests in the resolution of the dispute to find that they are privies of one another. [50] Unlike the Smith case, I find nothing on the record to indicate that the union and Mr. O'Connor had divergent interests in the resolution of the grievance. There is no suggestion that Mr. O'Connor's opportunity to advance his own interests was in any way fettered by the union's handling of his grievance. Similarly, there is no indication that he was denied the opportunity to provide evidence or make arguments on his own behalf. Thus, for the purposes of this aspect of the test, I find that the union and Mr. O'Connor were privies of one another. [51] However, this does not end the analysis. The Commission's participation in the proceedings must also be examined. The Commission was not a party to the grievance proceedings, but maintains that although it will not be appearing or presenting evidence or argument during the Tribunal hearing, it remains a party to the Tribunal's proceedings. Although the Commission made submissions on the present motion, they were limited to the issue of the Tribunal's jurisdiction. [52] Can it be said that the Commission was privy to the arbitration proceedings? To do so would require that I find that the union and the Commission are privies. In my view, this cannot be done. The requisite community of interest is simply not there. The role of the union in the arbitration proceedings is to represent the interests of the grievor and the members of the bargaining unit. The Commission's role in Tribunal proceedings is to represent the public interest. It is perhaps arguable, in light of the Commission's decision not to participate in the Tribunal hearing, that in some notional sense it was privy to the arbitration proceedings. In my view, however, this is a stretch. [53] I think that the better approach to take is a purposive one. As this Tribunal stated in Toth v. Kitchener Aero Avionics 2005 CHRT 19 at para. 16, the purpose of determining whether the Commission is a party in the context of an issue estoppel motion is largely to ensure that a party is not deprived of an opportunity to address the issues in the case. Given the Commission's stated intention not to participate in the hearing, I do not see how it could later assert that it was deprived of an opportunity to address the issues in the case. Therefore, in the present case, I find that for the purpose of determining whether issue estoppel applies, the Commission is not a party to the Tribunal proceedings. [54] In view of my conclusion that the union and Mr. O'Connor are privies, it follows that the parties or their privies are the same as those in the arbitration proceedings. [55] As a result of this analysis, I find that all three criteria for the application of issue estoppel have been fulfilled. However, in situations like the present and the one in Cremasco, where it is more difficult to say with certainty that the requirement of identity of parties has been met, the Supreme Court of Canada has indicated that it is appropriate to look to the doctrine of abuse of process. E. Abuse of Process [56] CN argues that if the Tribunal finds that the conditions for the application of issue estoppel have not been met, it should find that it would be an abuse of process to permit Mr. O'Connor to relitigate issues that were conclusively determined by the arbitrator. [57] In Toronto (City) v. C.U.P.E., Local 79 [2003] 3 S.C.R. 77 at para. 37, the Supreme Court of Canada stated that the doctrine of abuse of process is appropriately used to preclude relitigation in circumstances where the strict requirements of issue estoppel (typically the privity/mutuality requirements) have not been met, but where allowing the litigation to proceed would nonetheless violate principles such as judicial economy, consistency, finality and the integrity of the administration of justice. [58] The Federal Court has upheld this Tribunal's power to examine whether the doctrine of abuse of process applies to the particular facts of a case (Cremasco, at para. 41). The test for this doctrine was succinctly stated by the Tribunal in Cremasco at para. 81. The Tribunal must ask itself: Would it be fair to proceed? In Cremasco, the Tribunal explained that the public perceives the human rights process as an integral part of the justice system. Therefore, if the reputation of the larger system is to be preserved, one must consider whether, in the view of reasonable and informed but ordinary people, it would be fair to proceed with the complaint. [59] There is no indication on the record that the circumstances in this case have changed or that fresh evidence is now available that is relevant to the issue of Mr. O'Connor's accommodation. Nor is there any suggestion that the grievance arbitration was tainted by fraud, dishonesty or unfairness of any kind. [60] Therefore, in my view, a reasonable and informed person with an intuitive grasp of fair play would say that Mr. O'Connor has had his day in court, to use the vernacular. As this Tribunal stated in Cremasco at para. 96, it would be wrong to have a hearing, with all its accompanying inconvenience and expense, when the matter has been conclusively determined by the arbitrator. F. The Discretionary Factors [61] I have concluded that the criteria for both issue estoppel and abuse of process have been met. There remains, however, the question of whether I ought to exercise my discretion to refuse to apply the doctrines in the circumstances of the case. The discretionary factors that apply to prevent the doctrine of issue estoppel from operating in an unjust or unfair way are equally available to prevent the doctrine of abuse of process from achieving a similar undesirable result (City of Toronto at para. 53). [62] The Tribunal's discretion must be exercised in accordance with the particular facts of each case. The list of factors which may be taken into account is open-ended. In all cases, the objective is to ensure that the operation of issue estoppel promotes the orderly administration of justice, but not at the cost of real injustice in the particular case (Danyluk, at para. 63). [63] The following factors should be considered in the exercise of the Tribunal's discretion: the wording of the statute; the purpose of the legislation; the availability of an appeal; the safeguards available to the parties in the administrative procedure; the expertise of the decision-maker; the circumstances giving rise to prior administrative proceedings; potential injustice. [64] The Canada Labour Code, which sets out the legislative scheme for adjudicating disputes in federally regulated workplaces, provides for the expeditious resolution of disputes (Canada Labour Code R.S.C. 1985, c. L-2, s. 57). The Canadian Railway Office of Arbitration was established to ensure that this goal is met. In the present case, it appears that the arbitrator had access to a number of procedural safeguards, such as the power to summon witnesses, administer oaths, hear evidence, order production, hear oral and written arguments and make preliminary rulings. It also appears that Mr. O'Connor was fully supported by his union. Mr. O'Connor has not raised any concerns with respect to the fairness of the proceedings. [65] Moreover, there is no question that the arbitrator is highly experienced and knowledgeable in the area of labour relations and human rights in Canada. He is also very familiar with the particular circumstances of the CN work environment. Although the arbitrator's decision is subject to a privative clause in the Canada Labour Code, parties may still apply to the Federal Court for a review of the arbitrator's decision if they believe that serious errors have been made (Canada Labour Code, s. 58). This was not done in the present case. [66] In my view, the circumstances of the case do not give rise to any concerns about potential injustice. Mr. O'Connor was given a fair hearing before an experienced arbitrator. Although he has raised concerns with regard to the arbitrator's interpretation of the applicable workers' compensation legislation, I see no evidence of any serious error that would lead to a miscarriage of justice. [67] Finally, at the time of the arbitration hearing, Mr. O'Connor was in receipt of a disability pension. He sought to return to his original position, with the result that he would have received full wages plus the disability pension. He failed to achieve this result. CN, however, continued to offer Mr. O'Connor work that fit within his WSIB restrictions. [68] According to his Statement of Particulars, Mr. O'Connor is currently employed by CN as a Flagman in Mimico, Ontario. In addition, he continues to receive a disability pension. The option remains for him to bid for his original position if he is successful in having his restrictions lifted. [69] On the basis of all of these considerations, I find that there are no compelling reasons to exercise my discretion to refuse to apply either the doctrine of issue estoppel or abuse of process. IV. ORDER [70] For these reasons, CN's motion is granted. Mr. O'Connor's complaint against Canadian National Railway is hereby dismissed. Signed by Karen A. Jensen OTTAWA, Ontario January 31, 2006 PARTIES OF RECORD TRIBUNAL FILE: T987/10704 STYLE OF CAUSE: Ken O'Connor v. Canadian National Railway RULING OF THE TRIBUNAL DATED: January 31, 2006 APPEARANCES: Donald P. Kuyek For the Complainant Daniel Pagowski For the Canadian Human Rights Commission J. Curtis McDonnell For the Respondent

2006 CHRT 50

CHRT

Warman v. Kouba

en

2006-11-22

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6766/index.do

2023-12-01

Warman v. Kouba Collection Canadian Human Rights Tribunal Date 2006-11-22 Neutral citation 2006 CHRT 50 File number(s) T1071/5205 Decision-maker(s) Jensen, Karen A. Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE RICHARD WARMAN Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - peter kouba Respondent REASONS FOR DECISION MEMBER: Karen A. Jensen 2006 CHRT 50 2006/11/22 I. WHAT IS THE COMPLAINT ABOUT? II. WHAT ARE THE CIRCUMSTANCES THAT GAVE RISE TO THE COMPLAINT? III. WHO APPEARED AT THE HEARING? IV. WHAT QUESTIONS NEED TO BE ADDRESSED IN THIS CASE? A. Question 1 - Can the Tribunal consider material that post-dates the filing of the complaint? B. Question 2 - Is the Material Likely to Expose Members of the Targeted Groups to Hatred or Contempt? (i) The Hallmarks of Hate Messages (ii) The Tribunal's Conclusion Regarding the Messages C. Question 3 - Did the Respondent, Peter Kouba, communicate the hate messages? (i) The Evidence of Sergeant Stephen Camp (ii) The Evidence Presented by the Complainant and the Commission (iii) The Respondent's Explanation (iv) The Tribunal's Conclusion Regarding the Identity of the Communicator of the Hate Messages V. REMEDY APPENDIX A I. WHAT IS THE COMPLAINT ABOUT? [1] This complaint is about whether Peter Kouba, using the pseudonyms proud18 and WhiteEuroCanadian, communicated hate messages over the Internet, contrary to s. 13(1) of the Canadian Human Rights Act (the Act). [2] On June 8, 2004, Richard Warman filed a complaint with the Canadian Human Rights Commission (the Commission) alleging that from October 7, 2003 until June 2004 and ongoing, Peter Kouba communicated material on two Internet sites - www.stormfront.org (stormfront.org) and www.westerncanadaforus.com - that exposed First Nations people, East Asians, Pakistanis, Roma (also known as Gypsies) and other non-white people, as well as gays and lesbians and people of the Muslim, Hindu and Jewish faiths to hatred or contempt. [3] The Respondent denied that he communicated the messages. He alleged that the impugned messages were passed off as his own. He also alleged that he was not the kind of person who would communicate material that would expose a person to hatred or contempt. [4] In addition to presenting evidence of the alleged hate messages, the Canadian Human Rights Commission (the Commission) and the Complainant led evidence relating to the identity of the person who communicated the messages. [5] For the reasons that follow, I find that the material presented during the hearing into this complaint violates s. 13 of the Act. I also find that it was the Respondent, Peter Kouba, using the pseudonyms proud18 and WhiteEuroCanadian who communicated the impugned material over the Internet. II. WHAT ARE THE CIRCUMSTANCES THAT GAVE RISE TO THE COMPLAINT? [6] The Complainant testified that since the late 1990's he has had an interest in human rights, particularly in connection with the distribution of hate messages by those ascribing to white supremacist and neo-Nazi beliefs. This interest has led him to monitor the Internet for material that he regards as hate propaganda. [7] In the course of monitoring the Internet in 2003, the Complainant came across material on a website at www.stormfront.org that appeared to have been communicated by an individual living in Edmonton, Alberta. This individual was using the pseudonym proud18. [8] The Complainant testified that stormfront.org is an international website, based in the United States. It provides forums, which are sites on the Internet where people from around the world can communicate on-line about issues relating to white supremacy and neo-Nazi ideology. There are forums within stormfront.org that are dedicated to specific countries. The material communicated by proud18 was found on the Canadian forum of stormfront.org. [9] Within a forum, there is a list of threads or topics of discussion. The list is organized in chronological order with the thread containing the most recent message, which is also known as a posting, at the top of the list. The Complainant testified that any member of the public could read the postings within a thread on the Canadian forum of stormfront.org. [10] The Complainant stated that in the summer and fall of 2003, he became concerned about the material that was being posted on the Canadian forum of stormfront.org by proud18 for a number of reasons. First, the kind of language that was being used by this individual in relation to Aboriginal Canadians, the Jewish community, homosexuals and other minority groups was extremely negative and threatening. The responses on the forum to proud18's postings were calling for the genocide of some groups, such as homosexuals and the mentally disabled. Furthermore, there were indications in proud18's postings that the author was part of a group, known as Western Canada For Us (WCFU) that was planning neo-Nazi and white supremacist actions and events in the Alberta region. [11] The Complainant testified that in February 2004, it became evident that WCFU was also developing a website. In March 2004, the Complainant found the WCFU website on the Internet for the first time. On a page in the forum section of that website, the Complainant viewed what he considered to be hate messages directed towards gay and lesbian people. This material was posted by someone using the pseudonym WhiteEuroCanadian, who was designated as a moderator. The Complainant believed that WhiteEuroCanadian was the same individual who went by the moniker proud18 on the stormfront.org website. He believed that this individual was the Respondent, Peter Kouba. The Complainant testified that postings on the WCFU Forum could be viewed by anyone regardless of whether the person was a member of Western Canada For Us. [12] The Complainant expressed his concerns about the messages on stormfront.org and the WCFU websites to the Edmonton Police Hate Crimes Unit and then, in June 2004, he filed a complaint with the Canadian Human Rights Commission. III. WHO APPEARED AT THE HEARING? [13] The Commission fully participated at the hearing into the complaint and was represented by counsel. The Complainant also participated but was not represented by legal counsel, although it should be noted that he is a lawyer by profession. [14] The Respondent did not attend the first day of the hearing. At the outset of the hearing, an Affidavit of Service was filed indicating that he had been personally served with a Notice of the case conference on June 9, 2006 to discuss the upcoming hearing, a Notice of Venue indicating the exact location and dates of the hearing and a Tribunal letter outlining the procedure for the hearing. On that basis, I was satisfied that the Respondent had been provided with ample notice of the inquiry into the complaint as required by s. 50 of the Act. The hearing then proceeded on the first day in the Respondent's absence. [15] On the second day of the hearing, the Respondent appeared. He was not represented by counsel or an agent. The Respondent cross-examined the Complainant and made submissions in closing argument. He chose however, not to testify or to call any evidence on his own behalf. IV. WHAT QUESTIONS NEED TO BE ADDRESSED IN THIS CASE? [16] The following three questions must be addressed in this case: Can the Tribunal consider material that post-dates the filing of the complaint? Is the material likely to expose a person or persons to hatred or contempt by reason of the fact that they are identifiable on the basis of a prohibited ground of discrimination? Did the Respondent, Peter Kouba, communicate the material? A. Question 1 - Can the Tribunal consider material that post-dates the filing of the complaint? [17] The Complainant testified that he viewed the material on the stormfront.org and WCFU websites between October 9, 2003 and March 30, 2006. Material that post-dated the filing of the complaint in June 2004 was submitted as evidence of the ongoing violation of s. 13 as alleged in the complaint form. The complaint form, therefore, provided notice to the Respondent that material that was communicated after the date of the complaint would be tendered as evidence. [18] Prior to the first day of the hearing, the Commission attempted to disclose the post-complaint material to the Respondent by electronic mail, but received notification that the Respondent's e-mail system was unable to receive the material. The material was subsequently mailed to him and he was provided with a copy of the material when he arrived at the hearing on the second day. [19] Although the Respondent denied having communicated the post-complaint material, he did not object to its production on the basis that he had been given insufficient notice of the material. Given therefore, that the evidence relates to the ongoing nature of the alleged violations of the Act, and the fact that the Respondent had notice through the complaint form and the disclosure of the material that additional material would be presented during the hearing, I find that it is appropriate for the Tribunal to consider the evidence that post-dates the filing of the complaint. B. Question 2 - Is the Material Likely to Expose Members of the Targeted Groups to Hatred or Contempt? [20] Section 13 of the Act makes it a discriminatory practice for a person to communicate by means of the Internet, material that is likely to expose someone to hatred or contempt by reason of the fact that he or she is identifiable on the basis of a prohibited ground of discrimination. [21] Hatred has been defined as a feeling of deep ill-will, an emotion that allows for no redeeming qualities in the person to whom it is directed. Contempt suggests looking down upon or treating as inferior the object of one's feelings (Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892 at paras. 60 - 61). Material is likely to expose members of the targeted group to hatred or contempt if it is more likely than not to leave members of the targeted group vulnerable to extreme ill-will, or if it creates the conditions in which hatred and contempt are likely to flourish (Citron v. Zundel, (No. 4) (2002), 41 C.H.R.R. D/274 at para. 134). [22] An analysis of the growing body of s. 13 jurisprudence reveals that there are a number of hallmarks of material that is more likely than not to expose members of the targeted group to hatred or contempt. It may be useful at this point to provide a list of these hallmarks along with some examples from the case law to illustrate each point. The list is by no means exhaustive. It may, however, provide a useful context for the legal determination at hand. [23] After each hallmark is presented, a description and analysis of the material in the present case that displays this hallmark is provided. It should be noted that a significant number of postings were entered into evidence during the hearing. Many were too lengthy to reproduce in the body of this decision. Therefore, I have provided descriptions and short excerpts of the postings made by proud18 and WhiteEuroCanadian in my analysis. Further detail and content of the messages are provided in Appendix A of this Decision. (i) The Hallmarks of Hate Messages (a) The targeted group is portrayed as a powerful menace that is taking control of the major institutions in society and depriving others of their livelihoods, safety, freedom of speech and general well-being [24] The powerful menace theme is a common theme in cases where people of the Jewish faith have been the target of hate messages. For example, in Citron v. Zundel, supra, the messages expounded the theory that Jewish people operate a secret conspiracy designed to extort money and amass tremendous power and control on a global level. In that case, Jewish people were said to have duped the world into believing that the Nazi Holocaust took place in order to extort billions of dollars from countries in reparation. Jews were branded as liars, swindlers, racketeers and extortionists. The Tribunal found that such messages created the conditions in which hatred and contempt toward Jewish people would flourish since they encouraged people to think of Jews as a group of liars, cheats, criminals and thugs (Zundel, supra, at para. 140). [25] The portrayal of the targeted group as a powerful menace can also be seen in Schnell v. Machiavelli and Associates Emprize Inc. (2002), 43 C.H.R.R. D/453, where the impugned messages warned readers that homosexuals have an agenda. That agenda was to have pedophilia legalized (Schnell, supra, at para. 36). Again, the implication is that without realizing it, the Canadian public was being tricked into allowing their children to be victimized. The Tribunal found that this created the conditions for hatred and contempt to flourish. Does the Material in the Present Case Bear the Powerful Menace Hallmark? [26] Proud18's postings on stormfront.org about Aboriginal Canadians bear the powerful menace hallmark. They accuse the members of this group of extorting billions of dollars from Canadian taxpayers and claiming title to land that was never theirs. They warn readers not to fall into a guilt trap that has been set by Aboriginal people. For example, in a posting dated October 7, 2003, within a thread entitled If you don't like injuns, Then don't read this, proud 18 states: Now if you like the dream of the cartoon native Indian then do not read any further. It will show you how primitive these savages truly are. Injun Phil Fontaine is demanding close to $2 billion more a year for 600 1st. nation [600? That's the count Ottawa gives. One thing that puzzles me about this number is that 150 years ago there wasn't close to even half those numbers], These injuns are breaking away from their tribes and forming new ones. They then get a min, of a hundred million and so on ... Why should we have to pay these new off-tribes? On top of the close to $8 Billion a year they get already for as they say Spent on native programs to fulfil treaty and constitutional obligations. What efen obligation? We have over the years given them hundreds of BILLIONS of dollars/ prime land / royalties / tax free living / lifetime welfare on top of their reserve money. And yet they live like savages. Maybe there are a few clean ones out there ... MAYBE. And another on top of these injuns keep beaking off about how much more money they want. Billions of dollars down the drain. Hell give ten WHITE educated people a billion dollars and watch empires begin to form. And these injuns keep whinning about the high cost of LYSOL. (sic throughout) [27] In a posting dated November 23, 2003, proud18 alleges that the extortion of money from White Canadians by Aboriginal Canadians has resulted in the demise of the Canadian health care and education systems. [28] Similarly, proud18's messages about Jewish people mirror the powerful menace image that is portrayed in other hate message cases. Jewish people are said to control the media, the education system and our governments, thereby putting the non-Jewish population in grave danger. Jewish control over these institutions is alleged to be the reason that individual rights are being suppressed. For example, in a posting dated November 23, 2003, within a thread entitled What will it take to motivate us? proud18 writes: We all have our storys of how crapy it is where we live. We have less and less rights. Hell we are a endangered species. Whites by popullation are the biggest minority in the world. Jews have taken over our education, our media, our governments, etc. (sic throughout) [29] Like other messages bearing this hallmark, proud18's messages about Aboriginal Canadians and Jewish people attempt to generate feelings of outrage at being robbed and duped by a sinister group of people. In this way, the messages bearing this hallmark create the conditions for hatred of members of these groups to flourish. (b) The messages use true stories, news reports, pictures and references from purportedly reputable sources to make negative generalizations about the targeted group. [30] Messages that make use of allegedly true stories, news reports, pictures and references to apparently reputable sources in an attempt to lend an air of objectivity and truthfulness to the extremely negative characterization of the targeted group have been found to be likely to expose members of the targeted group to hatred and contempt. They encourage readers to accept, without question, gross generalizations and stereotypes about the targeted group. [31] For example, in Warman v.Winnicki 2006 CHRT 20, the Respondent made use of graphic photographic images of burned and dismembered people of African origin to convey his message that when an African person comes to live in Canada, he or she will inevitably bring violence and death. The Tribunal found that this increased the likelihood that members of the African community would be exposed to hatred or contempt since the images evoked strong feelings of revulsion and disgust (Warman v. Winnicki, supra, at para. 90). [32] In that same case, the respondent quoted from online news reports about crimes and events involving members of the targeted groups. The Tribunal found that the use of newspaper articles as evidence supporting the respondent's statements lent a certain appearance of legitimacy to his messages. This, the Tribunal held, enhanced the persuasiveness of the messages and increased the likelihood that the messages would expose members of the targeted group to hatred and contempt (Warman v. Winnicki, supra, at para. 82). Does the material in the present case bear the true story hallmark? [33] Proud18 attempts to use true stories and news reports to justify the unfounded and racist generalization that most crime in Canada is committed by Aboriginal people. For example, in a posting dated February 11, 2004, proud18 recounts an allegedly true story reported in the news about an Aboriginal man whose murder sentence was reduced on appeal. Proud18 concludes as follows: ... if you are a injun you can get away with murder just because one is a injun. No wonder they commit most of the crime in Canada. They have the courts on their side and they act like it. Canada needs saving ASAP. [34] In another posting on stormfront.org dated November 30, 2003, proud18 starts a thread entitled Indians sought in murder of 70 year old. The posting recounts an allegedly true news story about the murder of a 70 year old woman in her home. Proud18 states: Police are on the lookout for two injuns [so what else is new] who were seen running down the alley from her home. Now the doctors are scared to tell the 90 year old mother that her daughter was killed because they fear that she will die due to a broken heart. They only had each other in this world. (sic throughout) [35] Proud18 draws the following conclusions: It happened in Edmonton, I find that the Prarie injun is the killer/rapist type more then Ontario. But when it boils down to it they are all savages. (sic throughout) [36] Proud18 also makes use of apparently true news stories to convey a negative message about Black people. For example, in a posting dated November 30, 2003 within a thread entitled 2 black serial rapists of white women, proud18 recounts a story that was allegedly reported in the news, stating: two bald nigs have been raping women in the Clearview part of town. This leads proud18 to ask: How come the feds can say that most serial killers are white males but you can't even make it pubic that in Canada over 50% of the rapes are committed by blacks? [37] In a posting dated January 4, 2004 on stormfront.org, proud18 describes a media report about the serious injury and deaths that allegedly occurred during a gang fight involving people of the Hindu faith. According to the posting, the media report states that a White woman was involved with the gang and was also killed. In another posting on stormfront.org dated May 2, 2004, proud18 comments on a report in the media that a person of the Hindu faith had allegedly transmitted HIV/AIDS to three women. Proud18 uses these news items to make the point that if White women associate with people of the Hindu faith, they are race traitors and deserve to die. [38] The use of allegedly true stories to justify extremely negative conclusions about members of the targeted groups is a powerful means of exposing them to hatred because it may seem to some readers that the conclusions are justified in light of the evidence provided by the stories and reports. The stories are often anecdotal in nature and devoid of any contextual details or background that might lessen the impact or weaken the inferences that are sought to be drawn. [39] In numerous postings, proud18 encourages readers to join him in sharing their negative stories and experiences with Aboriginal people on the forum, so that any white nationalists who might be harbouring positive feelings toward Aboriginal people might be disabused of such feelings. It would appear, therefore, that the goal of such communications is to expose members of the targeted group to hatred or contempt. (c) The targeted group is portrayed as preying upon children, the aged, the vulnerable, etc. [40] In Schnell, supra, the messages stated that gay and lesbian people lure children into pedophilia and homosexuality. Similarly, in Payzant et al. v. McAleer and Canadian Liberty Net, 26 C.H.R.R. D/271, Aff'd 26 C.H.R.R. D/280 (F.C.T.D.), the messages were presented in such a way as to establish an association between pedophilia and homosexuality. This set the stage for a message calling for the execution of homosexuals. The Tribunal found that the association between pedophilia and homosexuality primed the recipient of the messages with disgust towards homosexuals, thereby rendering it more likely that message recipients would find the execution of homosexuals to be not such a bad idea, maybe (Payzant et al, supra, at para. 38). [41] In Warman v. Kyburz, 2003 CHRT 18, the messages graphically described the filming of the sexual torture and rape of children for the purpose of producing pornography, and then made the claim that although not all consumers of child pornography are Jewish people, Jews are disproportionately represented among them (Warman v. Kyburz, supra, at paras. 25 and 26). The Tribunal found that such messages could only serve to foster hatred against Jewish people. Does the material in the present case bear the predator hallmark? [42] Some of the material in this case bears the predator hallmark. In a posting dated December 1, 2003, proud18 portrays Black men as cannibals and head-hunters who have sex with animals; when they cannot do this, they resort to raping white women. Ominously, proud18 declares at the end of this posting that this [Black man] is what is moving in next door to you. [43] WhiteEuroCanadian's material on the WCFU website regarding gay and lesbian people also bears the predator hallmark. In a posting on that website dated March 9, 2004, WhiteEuroCanadian declares that homosexual people are not human beings, they are sexual perverts in the [same] category as pedophiles, bestiality, S&M, etc. It is because of this alleged tendency to prey on children that WhiteEuroCanadian states that he is opposed to homosexual people being daycare workers, babysitters, teachers, bosses, etc. [44] Like the material in other hate message cases that bears this hallmark, the material in the present case that characterizes the targeted groups as sexual predators plays on the intense fear that people have that children, women and vulnerable people will fall victim to the criminal and violent sexual impulses of the targeted groups. This makes it highly likely that members of the targeted groups will be exposed to deep feelings of hatred. (d) The targeted group is blamed for the current problems in society and the world [45] In Warman v. Alexan Kulbashian et al, 2006 CHRT 11, some of the messages blamed Jewish and Muslim people for the death, on September 11, 2001, of thousands of white folk in the World Trade Center in New York. The messages encouraged racialists to engage in violent acts against members of these groups. The Tribunal found that by equating all Jewish and Muslim people with the terrorists responsible for the 9/11 attacks, the messages unquestionably exposed these people to hatred, contempt and real physical danger, as they suggested that all members of those communities would be legitimate targets of indiscriminate retributory violence (Warman v. Kulbashian, supra, at para. 55). The messages were also designed to tap into and exploit pre-existing feelings of anger and fear that were felt in Canada after the attacks. [46] Some of the messages in Taylor and the Western Guard Party v. Canadian Human Rights Commission and Attorney General of Canada (1979), T.D. 1/79, linked the integration of non-White races into Canadian society to the decline in the quality of health care services. The Tribunal noted that the persuasive effect of these messages was generated by the fact that they linked the race problem to a particular problem in the country which might have been adversely affecting the recipients of the messages. Similarly, in that case, hatred or contempt toward Jewish people was fostered by attributing to them the blame for unemployment, inflation and the encroaching Third World War, three of what were seen as the most pressing problems in the world at the time. Does the material in the present case bear the cause of society's problems hallmark? [47] In proud18's postings on stormfront.org, the assertion is made that if Aboriginal people were not draining the Canadian economy of 10's of billions of dollars, the health care and education systems in Canada would be better. Proud18's postings also blame Jewish people, through their alleged control over the education system, the media and government, for robbing Canadians of their fundamental right to free speech. Similarly, in a posting dated November 30, 2003 entitled Muslim women break our laws on stormfront.org, proud18 asserts that because Muslim women are permitted to cover their faces in public, they are able to commit anonymous acts of terrorism like throwing grenades. In that posting, proud18 deplores the Canadian government for allowing the threat of terrorism in disguise into Canada. [48] These messages provide readers with scapegoats for the world's problems by providing an outlet for strong negative emotions; they tap into these emotions and divert them towards the targeted groups. In this way they foster and legitimize hatred toward members of the targeted groups. (e) The targeted group is portrayed as dangerous or violent by nature [49] In Warman v. Winnicki, supra, the Respondent made use of graphic photographic images of burned and dismembered people of African origin to convey his message that when any African person comes to live in Canada, he or she will inevitably bring violence and death. The Tribunal found that this increased the likelihood that members of the African community would be exposed to hatred or contempt since the images evoked strong feelings of revulsion and disgust (Warman v. Winnicki, supra, at para. 90). Does the material in the present case bear the dangerous or violent by nature hallmark? [50] All of the groups targeted by the material in the present case are characterized, in one way or another, as dangerous or violent by nature. Aboriginal people are said to commit the majority of crime in Canada, while Black men are said to be responsible for 50% of all rapes (the other 50% allegedly being the fault of Aboriginal men). Asian people are portrayed as murdering gang members, Muslim people are characterized as terrorists and Jewish people are said to be taking control of Canadian society. On that basis, taking action against these groups is justified by proud18. Similarly, WhiteEuroCanadian characterizes homosexual people as pedophiles and argues that others should not be subjected to sexual divients (sic) like homosexuals. (f) The messages convey the idea that members of the targeted group are devoid of any redeeming qualities and are innately evil [51] In Warman v. Kyburz, supra, at para. 34, one of the messages portrayed Zionist Jews as having no redeeming qualities whatsoever because: being frauds, criminals, war mongers, pedophiles, anti-life and full of hate is part of them ... It is their nature. They will not and cannot change. The Tribunal found that when read in context, these messages tell the reader that Jewish people are innately devious, treacherous, and murderous. Not only do they want to kidnap, corrupt, and kill white children, their ultimate goal is to take over the world. (Warman v. Kyburz, supra, at para. 48). The Tribunal found that such messages served to foster hatred against Jewish people. Does the material in the present case bear the no redeeming qualities hallmark? [52] All of the messages in the present case bear this hallmark in that they characterize the targeted groups in resoundingly negative terms and do not suggest, in any way, that the members might possess any redeeming qualities. [53] Proud18's postings regarding Aboriginal Canadians are particularly pointed in this regard. In a posting dated November 18, 2003, within a thread entitled Native Robbery proud 18 states: Sooner or later those Indians all break the law, its in their DNA to be bad. In another posting, proud18 rhetorically asks those who like these savages for an example of ONE benefit they have and one lousy contribution to society. Proud18 responds to the question in the following way: Just one instance that a injun is good, ... I can hear a pin drop in the forest with this defining (sic) silence. [54] In yet another posting dated October 11, 2003 within the thread entitled If you don't like Injuns, then don't read this proud18 writes: So all you wn who love the injuns, keep passing this thread because you would see that your so called proud native is nothing but a waste of time and a drain on the rest of the population. Hell give them a whole province and those lazy s***** would die out in less then two generations without our handouts. (sic throughout) [55] Proud18's postings about Roma state that Roma are a fithy group of Hindus. According to proud18, they are thieves, murderers, pimps and molesters who were exiled from the Czech Republic and sent to Canada on the promise of free health care and education. [56] The messages in this case foster the attitude that members of the targeted groups are so devoid of any redeeming characteristics that extreme hatred or contempt toward them is entirely justified. Furthermore, they convey the idea that is hopeless to expect civilized, law-abiding or productive behaviour from the targeted groups and they ridicule any reader who might harbour even a partially open mind towards members of the groups. (g) The messages communicate the idea that nothing but the banishment, segregation or eradication of this group of people will save others from the harm being done by this group [57] In Nealy v. Johnston, (1989), 10 C.H.R.R. D/6450, the messages claimed that non-white immigrants were pre-human and that they were allowed entry into Canada by the Jewish conspiracy in order to perpetrate the legalized racial genocide against the White race. The messages stated that the only solution was the forced deportation of non-white immigrants, or at the very least their segregation from the White population. The Tribunal found that such messages encouraged violence as a proactive means of defense against any who were seen as the enemies of racial purity (Nealy v. Johnston, supra, at para. 45668). Does the material in the present case bear the hallmark of calling for banishment, segregation or eradication of the targeted group? [58] In a posting on stormfront.org dated February 27, 2004, proud18 suggests that Aboriginal Canadians should be given a one-way ticket to Asia and a case of Lysol / glue and they wont (sic) know where they are going. Proud18 concludes as follows: Then we could regain our rightful place as the first white Euro people on this continent. [59] In another posting, proud18 asserts that Aboriginal people should not be restricted to reserves but should be confined to ZOO's. In yet another, proud18 states [t]hese savages don't learn anything, unless its being a savage beast that should not be put among civilized people. [60] Similarly, proud18's postings about Black people assert that they [Blacks] should still be in the jungle and not among civilized people. [61] Such messages convey the idea that Black and Aboriginal people are so loathsome that White Canadians cannot and should not associate with them. Such messages provide fertile ground for the growth of hatred and contempt. (h) The targeted group is de-humanized through comparisons to and associations with animals, vermin, excrement, and other noxious substances. [62] In Warman v.Winnicki, supra, Black people were described as sub-human beings devoid of any intelligence. They were also called cockroaches and stupid nigger-apes. The Tribunal held that these kinds of descriptions are de-humanizing, degrading and highly likely to expose Black people and other non-White or non-Caucasian people to hatred and contempt (Warman v.Winnicki, supra, at para. 80). [63] Similarly, in Warman v. Kyburz, supra, at para. 49, the Tribunal stated that the use of terms such as sub-human and vermin to describe Jewish people could most certainly lead some readers to view Jews as being inferior beings, causing them to hold Jewish people in contempt. Does the material in the present case bear the sub-human hallmark? [64] Proud18's messages about Aboriginal Canadians characterize them as primitive savages, subhumans, who don't even have one I.Q. point between the whole lot of them and who are of more value as fertilizer than as living human beings. Non-white immigrants are described as non-white scum that crawl here from all the garbage infested countrys (sic) and non-white people in general are described as mud. Jewish people are called stinking jews and Roma are called a filthy group of Hindus called Gypsies who sullied the streets of Europe and are now doing the same in Canada. [65] WhiteEuroCanadian states that homosexual people are not human beings, they are sexual perverts. [66] Such descriptions may lead readers to associate members of the targeted groups with waste, sub-human life forms and depravity. By denying the humanity of the targeted group members, they create the conditions for contempt to flourish. (i) Highly inflammatory and derogatory language is used in the messages to create a tone of extreme hatred and contempt [67] The use of epithets such as nig or nigger, mud, hebe, paki and others has been found to contribute to the likelihood that a message will expose the targeted groups to hatred or contempt (Warman v. Winnicki, supra, at para. 80). In Warman v. Kulbashian, supra, at paras. 44 - 45, the Tribunal found that the use of the term nigger, with its inherent connotation of slavery, segregation and racism, in and of itself displayed hatred and contempt toward Black people. [68] The messages in Warman v. Winnicki, supra, were riddled with profanity and a hysterical tone of rage. For example, in one message the respondent wrote the following: NIGGERS AND EAST INDIANS ARE SHIT!!!! GET OUT OF OUR CIVILIZATION YOU FUCKING MUDS!!!! [69] The level of vitriol, vulgarity and incendiary language contributed to the Tribunal's finding that the messages in that case were likely to expose members of the targeted groups to hatred or contempt. Does the language that is used in the present material create a tone of extreme hatred or contempt? [70] Proud18's postings are riddled with epithets such as nig-nog, nig, paki, injun, and savages. In one message, proud18 states that he called some Aboriginal people injuns in a restaurant and was told by them that this was offensive. Proud18's response was allegedly that as long as Ottawa was giving White Canadians' money to Aboriginal people, proud18 would continue to call them injuns. [71] The tone created by such language and messages is one of profound disdain and disregard for the self-worth of the members of the targeted groups. The term savages harks back to the colonial days of North America when Aboriginal people were viewed by most Europeans as primitive human beings at best. The use of this deeply insulting term in full knowledge of the offense that it gives demonstrates the extent of proud18's desire to expose Aboriginal people to hatred or contempt. (j) The messages trivialize or celebrate past persecution or tragedy involving members of the targeted group [72] In Warman v. Kulbashian, supra, the Respondents made riddles and jokes about the Holocaust. The Tribunal found these riddles and jokes made cruel light of the genocide of Jews in Nazi concentration camps. The effect was to dehumanize members of the targeted group and to set a tone of denigration that would allow hatred and contempt to flourish. Does the material in the present case bear the hallmark of trivializing or celebrating past tragedy? [73] Proud18 denies or trivializes the tragedy of the Holocaust by calling it a hoax, a lie perpetrated by Jewish people to extort money from non-Jewish people. Proud18's postings about Asian people celebrate the death and serious injury that allegedly occurred during a gang fight involving people of the Hindu faith. The posting dated January 4, 2004, entitled 2 dead, 4 injured. Yipee, describes the deaths and injuries of people of the Hindu faith as a joyful result. In another posting, proud18 comments on a report in the media that a person of the Hindu faith allegedly transmitted HIV/AIDS to three women. Proud18's response to this news was: Serves the women right, screwing a hindu. Hope they get it and fast. [74] With respect to Aboriginal Canadians, proud18 writes: Personally I'm getting a bit tired every time I read about a injun tribe beating a white kid to death because they lost their land to our forefathers. [75] The trivialization and celebration of past tragedy in proud18's postings creates a climate of derision and contempt which makes it likely that members of the targeted groups will be exposed to these emotions. (k) Calls to take violent action against the targeted group [76] In Taylor , supra, at page 38, the Tribunal noted that the impugned messages contained aggressive overtones that escalated in their call for violence against members of Canadian minority groups. These calls for violence were premised on the previous messages that attempted to convince the recipients that White Canadians were under attack by these groups and had to fight back or risk becoming victims of racial genocide. [77] In Warman v. Winnicki, supra, at para. 101, the Tribunal held that calls for violent action against the targeted groups were not only likely to expose members of the groups to hatred and contempt, but worse, they sought to justify, motivate and legitimize violent action against members of the targeted groups. Do the messages in the present case bear the call for action hallmark of hate messages? [78] The messages communicated by proud18 ask readers on stormfront.org to communicate their negative experiences with Aboriginal people. The goal is to persuade readers not to harbour any sympathy for these red devils and to take action. Although proud18 does not specify what is meant by taking action, the following posting suggests that it might not be peaceful: The violence by these scum injuns on innocent white people is getting out of control. We must do something soon to prevent further attacks on our race. [79] The call for violent action is echoed again in another posting by proud18: The non-whites who pop out kids just to get more welfare money are the ones who should be castrated ... [80] Proud18 poses the following questions to the stormfront.org readers in an apparent effort to motivate them to take action: What I would like to ask of those that still are not too sure of what they want to do or if the 14 words is for them. What event would it take to have you cross that line and become a true white patriot? If a black raped your spouce or child? If you got beat up and mugged by a tribe of Indians? What would it take? Or is common sence and good judgement good enough for you to see that your race needs all hands on deck? And also at this time i'd like to ask some of those that have all ready seen the truth and decided the white race is worth fighting for, to share your story's with us. If you feel comfortable. (sic throughout) [81] The call for action is, in fact, found throughout proud18's postings in statements such as YOU FINALLY HAVE TO GET UP AND DO SOMETHING ABOUT THE PROBLEM. I find that the messages in this case bearing the call to action hallmark are highly inflammatory and provocative. They are likely to expose members of the targeted group not only to hatred and contempt but also to the possibility of violent action. While the call for action in proud18 and WhiteEuroCanadian's messages is not always explicitly a call for violent action, there is a clear inference to be drawn that some kind of confrontation, resistance or opposition is being called for. The imperative urgency of these messages suppresses judgment and open-mindedness. It demonizes the targeted groups, thereby making them vulnerable to hatred or contempt. (ii) The Tribunal's Conclusion Regarding the Messages [82] The hallmarks or attributes of hate messages are what distinguish them from legitimate speech that is not subject to sanction under s. 13 of the Act. All of these attributes involve an attack on the inherent self-worth and dignity of the members of the targeted group. To paraphrase the words of Justice Muldoon of the Federal Court, material that bears the hallmarks of a hate message disparages and ridicules other people just for drawing breath, for living (Canada (Human Rights Commission) v. Canadian Liberty Net, [1992] 3 F.C. 155, at para. 56). [83] The messages in the present case bear many of the hallmarks of hate messages. They make use of allegedly true stories to justify the portrayal of members of the targeted group as dangerous and violent sub-humans who are worthy of nothing but the highest degree of contempt and hatred. They use racist epithets and slurs to create a tone of profound denigration and disgust. The messages advocate the exile or segregation of members of the targeted groups and exhort readers to take action to stop the evil menace created by these people. [84] For these reasons, I conclude that the material that was presented during the inquiry into this matter from both the stormfront.org and the WCFU websites is likely to expose members of the targeted groups to hatred or contempt by reason of the fact that they are identifiable on the basis of a prohibited ground of discrimination. Therefore, the messages examined above shall hereinafter be referred to as the hate messages. C. Question 3 - Did the Respondent, Peter Kouba, communicate the hate messages? [85] The Complainant and the Commission asserted that uncontroverted evidence presented during the hearing established that the Respondent, Peter Kouba, communicated the hate messages presented in this inquiry. The evidence adduced by the Commission consisted of testimony from Sergeant Stephen Camp from the Edmonton Police Force, a Witness Statement Form that was authored and signed by the Respondent, and evidence provided by the Complainant, Richard Warman. (i) The Evidence of Sergeant Stephen Camp [86] Sergeant Stephen Camp testified that he was a member of the Edmonton Police Service Hate Crimes Unit in 2003, when he began to monitor the Canadian forum on stormfront.org, a site he described as one of the primary sites for the propagation of hate. He noticed that there appeared to be a number of participants in the forum from Edmonton and other parts of Alberta. As a result, he began to monitor the activities and discussions of these individuals more closely. Sergeant Camp was particularly struck by the frequency of the postings made by one individual using the pseudonym proud18, who claimed to be from Edmonton. Sergeant Camp testified that he was concerned about the extreme nature of the hatred that was being expressed by this individual toward minority and Aboriginal communities in Edmonton. [87] Sergeant Camp witnessed on-line collaboration between proud18 and other members of the Canadian forum of stormfront.org to form an Alberta-based organization called Western Canada for Us, that would organize white supremacist political actions in Edmonton. As a result, Sergeant Camp stated that the Edmonton Hate Crimes Unit became concerned that proud18 and other members of WCFU would initiate violent action against minority and Aboriginal communities in Alberta. For that reason, the Edmonton Police designated proud18, and a number of other individuals identified with WCFU, as subjects of interest. Intensive investigative efforts were then made to discover the identities of these individuals. [88] Sergeant Camp testified that a number of investigative techniques were used to determine proud18's identity. First, proud18's postings revealed that this individual lived in Edmonton, was organizing rallies in Edmonton and was discussing the establishment of a Whites-only community in Alberta that was to be called Whiteville. Surveillance was conducted on the rallies and meetings that proud18 had helped to organize. One such rally was held in February 2004, at the Sandman Inn in Edmonton. There, an individual who was identified as Peter Kouba spoke about Whiteville and the strategy that would be used to get Whiteville started. Sergeant Camp testified that Peter Kouba's statements during the rally were consistent with the statements that proud18 had made on the stormfront.org discussion forum. [89] Sergeant Camp testified that the Police conducted computerized checks on the Motor Vehicle Registry and utilized other information sources such as the CPIC system (Canadian Police Information Centre) to trace proud18's identity. Sergeant Camp testified that through the Motor Vehicle Registry, the Police were able to match a picture with the name Peter Kouba. They were also able to verify that Peter Kouba was one of the people attending the white supremacist rallies and meetings organized by proud18 and others on the Canadian forum of stormfront.org. [90] Sergeant Camp testified that he continued to monitor the stormfront.org website on a daily basis to determine whether proud18 was, in fact, Peter Kouba. Sergeant Camp further testified that in the course of monitoring the Internet, he learned that proud18 and another individual using the pseudonym SS-88, were collaborating in the development of a website for WCFU. Police investigations revealed that SS-88 had assumed leadership of the WCFU as well as the principal development of the website. The investigation also led the Edmonton Police to strongly suspect that SS-88 was an individual by the name of Glenn Bahr. [91] In early March 2004, Sergeant Camp observed the WCFU website on the Internet for the first time. One of the moderators of the WCFU Forum was an individual using the pseudonym WhiteEuroCanadian. [92] He stated that within two weeks of monitoring the postings on stormfront.org and the WCFU website, it was obvious to him that a rift had developed between proud18 and other members of WCFU regarding the public image of the WCFU website. Sergeant Camp testified that he read postings on stormfront.org in which there was open disagreement between proud18 and other members of the forum about the use of neo-Nazi slogans and jargon on the WCFU website. Contrary to the views of SS-88 and other members of the forum, proud18 believed that the open espousal of neo-Nazi values on the WCFU website would turn the average person away from the cause of white nationalism. [93] Toward the middle of March 2004, proud 18's postings revealed that proud18 had been kicked off the WCFU website because he did not espouse the neo-Nazi values held by SS-88 and other members of the WCFU. [94] Sergeant Camp testified that he subsequently read a posting on the WCFU website by SS-88, the leader of the WCFU, that read: Due to differences between WCFU and WhiteEuroCanadian he is no longer here. Do not believe the lies that he is spreading. This led Sergeant Camp to believe that WhiteEuroCanadian and proud18 were the same individual and that they were the pseudonyms using by Peter Kouba. [95] Following up on these suspicions, Sergeant Camp decided to call Mr. Kouba on the telephone to ask him for a meeting in March 2004, to discuss the WCFU and Glenn Bahr. Sergeant Camp stated that the Edmonton Police were no longer interested in pursuing charges against Mr. Kouba since the Police had decided to concentrate their efforts on obtaining a conviction against Glenn Bahr, whom the Police believed to be the mastermind of the WCFU. Therefore, Sergeant Camp's purpose in meeting with Mr. Kouba was simply to obtain evidence from him against Glenn Bahr. Given the obvious rift that Sergeant Camp had observed develop between SS-88 and proud18 on the stormfront and WCFU websites, Sergeant Camp thought that it was likely that Peter Kouba, whom he believed to be proud18 and WhiteEuroCanadian, would be willing to provide information about Glenn Bahr, whom he believed to be SS-88. [96] Sergeant Camp met with Peter Kouba on March 29, 2005. The conversation was wide-ranging and informal. Sergeant Camp stated that he confronted Mr. Kouba with the fact that, as proud18 on stormfront.org, he had said some very hateful and derogatory things about Jewish and Aboriginal people, as well as other minority groups. Sergeant Camp testified that Mr. Kouba responded by saying yes, but then adding that he made the postings not to promote hatred, but to promote white nationalism. Sergeant Camp stated that during the meeting, Mr. Kouba discussed his involvement in the stormfront.org forum as proud18. [97] During that same conversation of March 29, 2005, Sergeant Camp discussed Mr. Kouba's involvement as a moderator of the WCFU Forum using the pseudonym WhiteEuroCanadian. Sergeant Camp testified that Mr. Kouba did not deny that he went by the pseudonym WhiteEuroCanadian on the WCFU website. Moreover, Mr. Kouba elaborated on his theory of how the WCFU should be run and why white nationalists should not resort to neo-Nazi slogans and propaganda. He explained that he and Mr. Bahr had ideological differences regarding Mr. Bahr's beliefs in neo-Nazism and the fact that Mr. Kouba did not want white nationalism to be publicly associated with neo-Nazi ideals. He told Sergeant Camp that this was why WhiteEuroCanadian had been kicked out of the WCFU and off the website. [98] At the meeting on March 29, 2005, Peter Kouba drafted and signed a Witness Statement Form. This Statement, which was an account of the testimony that Mr. Kouba might give in a criminal trial against Glenn Bahr, was entered into evidence on the first day of the hearing into the present case. In this Statement, Peter Kouba wrote: A/ I have no affiliation with Glenn Bahr or WCFU. b/ When the WCFU came on line G.B. kicked me out and I was banned due to severe ideological differences. I was locked out of the WCFU site by G.B. c/ I had no influence on the content's of the WCFU site. G.B. had total control of the site. d/ I left and at the same time got kicked out of WCFU because G.B's Nazi idealogy and intent to make the WCFU site a hate site. (sic throughout) [99] At the hearing, the Respondent told the Tribunal that he was the author of this Witness Statement. (ii) The Evidence Presented by the Complainant and the Commission [100] Through the Complainant's testimony, the Commission tendered evidence consisting of copies of postings that were allegedly made by the Respondent, Peter Kouba, and other participants in the WCFU forum and stormfront.org Canadian forum. It was argued that the content of these postings was consistent with the statements made by the Respondent in his Witness Statement Form, and that they corroborated the testimony of Sergeant Camp that Peter Kouba, using the pseudonyms proud18 and WhiteEuroCanadian, was the author of the hate messages in this complaint. [101] The postings are organized under the factual allegations that they are alleged to support. They are as follows: proud18 lives in Edmonton. [102] In a posting on stormfront.org dated October 19, 2003, proud18 states: I lived in cowtown for a few years but now live in Edmonchuck. [103] A posting dated November 24, 2003 on stormfront.org indicates that proud18's location is Edmonton. (b) proud18 worked with SS-88 to develop a website and an organization devoted to establishing Whiteville and supporting white nationalism. [104] In a posting on stormfront.org dated February 9, 2004, proud 18 states: We have to come up with a $130 cnd. to build the Whiteville site and get it operational asap. ... I'm not going to beg for donations here [dont know if you can] but if anybody can help out in any way please contact me or SS-88. Thank you. (sic throughout) [105] In another posting on stormfront.org dated March 2, 2004, proud18 refers a suggestion regarding the development of the WCFU website to SS-88 stating, SS-88 you take this one, you know the pc better then (sic) me. [106] On March 4, 2004, proud18 made the following posting on stormfront.org: ...We have to finish this site asap. Get ahold of SS-88 to get the info on how to work on the site. thx (c) proud18 espouses a philosophy regarding white nationalism that is at odds with that of other members of the WCFU. [107] In a stormfront.org posting dated January 30, 2004, proud18 writes: I have even been told by a member here that whites cant be proud to be white UNLESS they accept at least some of the Nazi philosophy and beliefs. That comment alone is enough to drive away thousands of potential members. There are many here that I know personally that have relatives/friends/spouces / co-workers etc. that are intiminated to join us here because they want to be able to be proud of their race, to help secure a bright future for our children, who are against immigration, who are against homs, to live among their own and help it's own communitys prosper etc. We all agree [I hope] that we have many if not all these beliefs also. We also agree that we would welcome these white kin. So why must we scare them off by giving them a big Seig Heil greeting? (sic throughout) (d) proud18 is expelled from the stormfront.org forum and WhiteEuroCanadian is expelled from WCFU by SS-88. [108] In a posting on Stormfront. org dated March 19, 2004, proud18 states: Well after working my ass off for over a year and a half on getting white folks to put aside their differences and work together I got SS-88 to move out here and help out. Well he helped out all right. By backstabbing me and with a bunch of neo-nazi wannabees has staged a hostile takeover of wcfu and plans for Whiteville. I bleed for my race and this is how I got repaid. So I'm out of wcfu since it lost its focus and has turned into a neo-nazi hang out. [109] On Friday, March 19, 2004, SS-88 posted the following message on the WCFU website within a thread entitled WhiteEuroCanadian is no longer here: Due to differences between WCFU and WhiteEuroCanadian he is no longer here. Do not believe the lies that he is spreading. [110] A posting by proud18 on the stormfront.org discussion forum dated May 2, 2004 reads as follows: Lucky I pay monthly to sf. Because the wcfu group has now started a thread saying I was some guy on a radio show. Now the wcfu has started a expultion thread and the wcfu group is under orders to vote me out of Stormfront. I have pizzed of a group and now they want to get rid of me, again. I live for my white race and this is how things are. Hell this group stole my site and they wont be happy til I'm gone. ... (sic throughout) [111] In the left hand margin of the message on stormfront.org, under the moniker proud18, one reads: Account Disabled. (e) SS-88 is Glenn Bahr [112] In a posting made in May 2004, on the stormfront.org Canadian forum, a forum member using the moniker TemplarDan states: All hail the supreme leader! HAIL BAHR! [113] SS-88 responds to this posting by stating: HAHA Dan! Stop it! WCFU is a group! WE all have our input! I just took the initiative of getting it going. ... [114] The Complainant and the Commission asserted that the above-noted postings confirm that Peter Kouba was proud18 and WhiteEuroCanadian. (iii) The Respondent's Explanation [115] In his Statement of Particulars and closing argument, the Respondent denied having communicated the hate messages on stormfront.org. He argued that his postings on stormfront.org had been subject to tampering. He stated that the Complainant had picked through the postings on the websites and presented only those that had been altered. The Complainant ignored the many posts where the Respondent asked why his postings and words were being changed by the website administrators. [116] In his Statement of Particulars, the Respondent stated that he would bring with him to the hearing copies of postings to prove his defense. The Respondent did not follow through on that promise. Furthermore, he did not testify or lead any evidence in support of his allegation that the impugned postings were altered, edited or tampered with in any way. As the Tribunal noted in Warman v. Kulbashian, supra, at para. 115, it is not sufficient for the Respondent to make out a defense of this nature by hints and innuendo during the course of the hearing. If he is alleging that he has been the victim of a set up, or that his messages have been tampered with, then it is incumbent upon Mr. Kouba to lead evidence in support of those allegations. [117] Mr. Kouba claimed that he had no way of proving that he did not communicate the messages, because his postings on both websites were removed after he was banned. Whether this was the case or not cannot be established since there was no evidence presented on the issue of the removal of the messages. However, there were other means by which Mr. Kouba could have provided evidence that he did not make the postings. For example, he could have testified under oath that he did not make the postings or explained how he learned of the tampering and what he did about it. He could also have called other members of the stormfront.org Canadian Forum or the WCFU to testify that they had observed that his postings had been changed. Mr. Kouba's claim that he was unable to defend himself against the complaint rings hollow in light of the options that were available to him. [118] The evidence of Sergeant Camp was that at no point during the conversation of March 29, 2005, did Mr. Kouba ever indicate that anyone had tampered with, edited or changed any of his postings on either the stormfront.org discussion forum or the WCFU website. Sergeant Camp further testified that the Edmonton Police's investigation of the members of the WCFU did not uncover any evidence that Mr. Kouba had complained to any of the WCFU members that his postings had been subject to tampering. [119] Based on the fact that the Respondent did not lead any evidence regarding the allegation that his postings on the stormfront.org website were tampered with, and the testimony provided by Sergeant Camp that the Respondent did not complain earlier about any kind of tampering, I find that this allegation has no substance. [120] The Respondent further argued, in his closing submissions, that there was no direct evidence that he was the communicator of the hate messages in this case. Direct evidence would involve testimony from a witness who actually saw the Respondent communicate the messages or a document that directly establishes that the Respondent communicated the messages. In cross-examination, the Complainant admitted that he did not have direct knowledge of whether the Respondent communicated the impugned material. The Complainant stated that his belief that this was the case was based on the circumstantial evidence that he had gathered over time. [121] It is not a requirement in law that facts in issue in a case be proved by direct evidence. In many cases, the facts may only be established through the proof of other facts (Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 2nd ed. (Toronto: Butterworths, 1999), at p. 38). This is what is known as circumstantial evidence. [122] As has often been noted in human rights jurisprudence, discrimination is not a practice that one would expect to see displayed overtly (see for example: Morin v. Canada (Attorney General) 2005 CHRT 41 at para. 191). In fact, rarely are there cases where one can show by direct evidence that discrimination is being practiced. The Tribunal therefore, is often required to consider all of the circumstances in determining if discrimination has occurred. An inference of discrimination may be drawn where the evidence offered in support of it renders such an inference more probable than the other possible inferences or hypotheses. [123] As in many cases of discrimination, there is no direct evidence in this case that the Respondent communicated the hate messages. Therefore, in making a determination regarding the identity of proud18 and WhiteEuroCanadian, the Tribunal must assess the circumstantial evidence that was presented. [124] During the hearing, the Respondent objected to the introduction of some of the evidence on the basis that it was irrelevant and was hearsay. He also argued, at the end of the hearing, that all of the evidence regarding the identity of the communicator of the hate messages was hearsay and should, therefore, be accorded very little weight. At the hearing, I ruled that the evidence regarding the Respondent's identity was relevant, and that section 50(3)(c) of the Act authorized the Tribunal to accept hearsay evidence. On that basis, the evidence was admitted. [125] The Tribunal is, however, mindful of the potential vulnerabilities of hearsay evidence. One such potential weakness is that the person who is said to have made the hearsay statements is not present at the hearing and therefore, his or her evidence cannot be tested. Another problem with hearsay evidence may be that its reliability and authenticity are not certain. The frailties of hearsay evidence may, however, be addressed by the weight that is accorded to it as the Tribunal makes its decision. The weight that is accorded to evidence also depends, to a large extent, upon its probative value, or the degree to which it tends to establish the facts in support of which it is presented. [126] Some of the hearsay evidence adduced by the Commission with regard to the Respondent's identity was not particularly reliable or probative and therefore, I have given it very little weight. For example, the Commission produced copies of postings on stormfront.org regarding the alleged participation of the Respondent in a radio call-in show. It was alleged that in one of these postings the Respondent, writing as proud18, responded to assertions by another member of the stormfront.org Forum that proud18 was Peter Kuda and that he had participated in the radio show. In the posting in question, proud18 admitted neither to being Peter Kuda nor to appearing on the radio station. Therefore, I find that the probative value of this evidence is weak, and I have accorded little weight to this evidence. [127] However, Sergeant Camp's testimony, the Witness Statement Form, and the postings on stormfront.org and the WCFU website presented in the previous section are highly probative and reliable. Hence, for the following reasons, I have accorded this evidence significant weight. [128] Sergeant Camp gave credible testimony about the basis for his conclusion that proud18 and WhiteEuroCanadian were the pseudonyms used by the Respondent. I find Sergeant Camp's testimony with regard to the meeting of March 29, 2005, to be particularly salient. During the meeting, Sergeant Camp referred to proud18's postings on stormfront.org and WhiteEuroCanadian's postings on the WCFU website. Sergeant Camp's evidence was that Mr. Kouba did not deny having made those postings and indeed, attempted to justify them by saying that he made them not for the purpose of promoting hatred, but to promote white nationalism and white pride. [129] Mr. Kouba had the opportunity to challenge Sergeant Camps's evidence through cross-examination. He chose not to do so and in fact, was not in attendance on the day that Sergeant Camp testified. Moreover, he chose not to take the stand himself and provide his side of the story. Mr. Kouba can hardly then say, at the close of the hearing, that the truth of what Sergeant Camp reported about the meeting that took place on March 29, 2005 has not been tested and therefore, should not be given much weight. I find, therefore, on a balance of probabilities, that Mr. Kouba made the statements as recounted by Sergeant Camp in his testimony. [130] During the hearing, the Respondent admitted that he authored the Witness Statement Form. Therefore, its authenticity is established. The Respondent argued, however, that the Witness Statement Form did not include an admission on his part that he was proud18 or WhiteEuroCanadian. I take the Respondent's point. However, the probative value of the Witness Statement Form lies in the fact that it establishes that Glenn Bahr expelled Peter Kouba from the WCFU because of ideological differences related to Bahr's espousal of neo-Nazi philosophy. [131] When the contents of the Witness Statement Form are compared to the postings made by proud18 on the stormfront.org website and by SS-88 on the WCFU website, to the statements made by Peter Kouba in his meeting with Sergeant Camp on March 27, 2005, a strong inference arises that Peter Kouba was the individual using the pseudonyms proud18 and WhiteEuroCanadian to communicate the hate messages. [132] The postings indicate that proud18 lived in Edmonton and that he and SS-88 started a group by the name of Western Canada for Us. Shortly after WCFU mounted its website on the Internet, SS-88 expelled WhiteEuroCanadian from the WCFU website because of ideological differences. Proud18 complained about his expulsion from the WCFU website on the Stormfront discussion forum. This matches with the statements made by the respondent Peter Kouba in his Witness Statement Form. [133] Accordingly, I find that the postings that relate to the identity of proud18 and WhiteEuroCanadian are corroborated by the Witness Statement Form. I have therefore, given them significant weight. [134] I have also accorded significant weight to the evidence of Sergeant Camp. He gave his testimony in a clear, convincing and forthright manner. Sergeant Camp's testimony was internally consistent as well as being consistent with the other evidence presented in this case. (iv) The Tribunal's Conclusion Regarding the Identity of the Communicator of the Hate Messages [135] The Canadian Human Rights Commission adduced credible evidence that supported its allegation that the Respondent, using the pseudonyms proud18 and WhiteEuroCanadian, communicated the hate messages over the Internet. The Respondent failed to provide an evidentiary defense to the case made out by the Commission. For the reasons stated above therefore, I find that the evidence in this case was sufficient to establish, on a balance of probabilities, that the Respondent, Peter Kouba communicated the hate messages in this case. V. REMEDY [136] Section 53(2) of the Act states that if the Tribunal finds that the complaint has been substantiated, the member may, subject to section 54, make an order against the person found to be engaging or to have engaged in the discriminatory practice. Section 54(1) sets out the orders that may be made with respect to hate messages. It incorporates, by reference, certain orders that may be made under section 53 for other cases of discrimination. [137] The Commission and the Complainant have requested the following: an order that the Respondent cease the communication of messages like the ones that were the subject of the complaint; an order that the Respondent pay a penalty in the amount of $7,500. (1) An Order that the Respondent Cease the Discriminatory Practice [138] The Tribunal orders that the Respondent, Mr. Peter Kouba, cease the discriminatory practice of communicating over the Internet, material of the type that was found to violate s. 13(1) in the present case, or any other matter of a substantially similar content that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or persons are identifiable on the basis of a prohibited ground of discrimination. (2) Penalty [139] Section 54(1)(c) of the Act permits the Tribunal to order a respondent in a s. 13 complaint, where the complaint has been substantiated, to pay a penalty of up to $10,000. The Commission requested an Order that the Respondent be required to pay a penalty in the amount of $7,500 in this case. [140] In deciding whether to order the Respondent to pay a penalty in this case, Parliament has directed, under s. 54(1.1), that the Tribunal take the following factors into account: The nature, circumstances, extent and gravity of the discriminatory practice; The willfulness or intent of the person who engaged in the discriminatory practice; Any prior discriminatory practices that the person has engaged in; and The person's ability to pay the penalty. [141] I find that the numerous hate messages in this case that were communicated over a period of nearly three years were highly contemptuous and injurious. They portrayed members of the targeted groups as evil and criminal by nature. The especially troubling part about the Respondent's messages is not just that they were profoundly bigoted; they also willfully and intentionally exhorted readers to share their negative experiences with members of the targeted groups with other Forum readers. In so doing, the Respondent encouraged readers to participate in a campaign to convince the White world that members of the targeted groups are worthy of nothing but the highest degree of hatred and contempt. This active promotion of hatred and contempt towards members of the targeted groups is fundamentally at odds with the goal of the Canadian Human Rights Act, which is to promote a society in which all are free from discrimination and all are worthy of equal opportunity regardless of personal traits such as race, national or ethnic origin, colour, and sexual orientation. [142] There was, however, no information that the Respondent had engaged in any prior discriminatory practices. [143] Nevertheless, taking into account the nature, circumstances, gravity and intentional nature of the communication in the present case, the suggested penalty of $7,500 seems appropriate. The Respondent did not provide the Tribunal with any indication of his ability to pay the suggested penalty of $7,500. Therefore, in the absence of any such information from the Respondent, I find that there is no reason to reduce the penalty. [144] Taking all of these factors into account, I order the Respondent to pay a penalty in the amount of $7,500. Payment of the penalty shall be made by certified cheque or money order, payable to the Receiver General for Canada, and must be received by the Tribunal within 120 days of the Respondent's being notified of this decision. Signed by Karen A. Jensen OTTAWA, Ontario November 22, 2006 PARTIES OF RECORD TRIBUNAL FILE: T1071/5205 STYLE OF CAUSE: Richard Warman v. Peter Kouba DATE AND PLACE OF HEARING: July 10 & 11, 2006 Edmonton, Alberta DECISION OF THE TRIBUNAL DATED: November 22, 2006 APPEARANCES: Richard Warman For himself Giacomo Vigna / Ikram Warsame For the Canadian Human Rights Commission Peter Kouba For himself APPENDIX A Aboriginal People The following are excerpts from some of the postings about Aboriginal Canadians made by proud18 on the Canadian forum of stormfront.org: a. Posting date: October 7, 2003 Thread Title: If You Like Injuns, Then don't read this. Post #1 I know our friends in America have blacks as their number one minority. But here in Edmonton we have stinking injuns. Now before we get to the real horrors go grab a smoke or a drink, sit back and read about The Proud Injun. ******Injuns want another $2 Billion from our pockets??**************** Now if you like the dream of the cartoon native Indian then do not read any further. It will show you how primitive these savages truly are. Injun Phil Fontaine is demanding close to $2 billion more a year for 600 1st. nations [600? That's the count Ottawa gives. One thing that puzzles me about this number is that 150 years ago there wasn't close to even half those numbers], These injuns are breaking away from their tribes and forming new ones. They then get a min. of a hundred million and so on Why should we have to pay these new off-tribes? On top of the close to $8 Billion a year they get already for as they say Spent on native programs to fulfil treaty and constitutional obligations. What efen obligation? We have over the years given them hundreds of BILLIONS of dollars/ prime land / royalties / tax free living / lifetime welfare on top of their reserve money. And yet they live like savages. Maybe there are a few clean ones out there MAYBE. And another on top of these injuns keep beaking off about how much more money they want. Billions of dollars down the drain. Hell give ten WHITE educated people a billion dollars and watch empires begin to form. And these injuns keep whinning about the high cost of LYSOL. (sic throughout) (b) Posting date: October 11, 2003 Thread Title: If You Like Injuns, Then don't read this. Post # 18 So all you wn who love the injuns, keep passing this thread because you would see that your so called proud native is nothing but a waste of time and a drain on the rest of the population. Hell give them a whole province and those lazy s***** would die out in less then two generations without our handouts. (sic throughout) (c) Posting date: October 11, 2003 Thread Title: If You Like Injuns, Then don't read this. Post #21 I remember a poll on here awhile back and it asked if you feel sorry and sympathize with them and I was shocked at the high numbers of so called proud white folks who said things like they are my friends etc. I notice those folks are nowhere to be seen on this thread, seems they are scared to show their yellow stripes in public again? Everytime we see a story or personal experience of someone we should add it to this thread. Maybe our American and European friends who love the movie versions of these savages would see the truth and realize it is just more jew media brainwashing they have been brainwashed by. In Edmonton you see a ton of stuff and I'll keep adding stuff as often as I can. (sic throughout) (d) Posting date: October 13, 2003 Thread Title: If You Like Injuns, Then don't read this. Post #25 You don't know Canadian injuns too much. They don't get addicted to Lysol they choose to drink it. It is cheap and gives them a buzz. But it still boggles my mind that a lot of wn have sympathy for these red devils. How can you have feelings for these subhumans and still call yourself a wn or even just a proud white man? (sic throughout) (e) Posting date: October 18, 2003 Thread Title: Indians Post #5 Yeah, stinking red devil savages who don't even have one I.Q. point between the whole lot of them. (sic throughout) (f) Posting date: October 19, 2003 Thread Title: Indians moving closer to the suburbs Post #2 Down by the Stampede grounds all those homes are bought by the stampede board and in the near future they will rip the homes down and expand the grounds. Then the migration will realy start. Walk down Stephen Avenue mall downtown and see these Lysol guzzlers passed out all over. They should HAVE to stay on their reserves if they want govt. money. I lived in cowtown for a few years but now live in Edmonchuck. Not much different. Take care. (sic throughout) (g) Posting date: October 25, 2003 Thread Title: Funny Indian Story Post #1 In a posting dated October, 25, 2003, proud18 writes: The other day we were in a cafe and this Indian at the next table told us they are offended by the term Indian that it should be aboriginals / native. They were pretty upset but then I looked at them and said you guys take our money thanks to the Indian Act so till Ottawa changes it I'll keep saying Indian. The look on their faces was a Kodak moment. They just shut up after that. If any Indian is offended by Indian tell them it is the law. An individual going by the moniker Cabinger replies to proud18's posting in the following words: It could be worse. You could have called him injun. Proud18 then replies to Cabinger as follows: I did a few times but they were drunk so it probbobly sounded like indian. (sic throughout) (h) Posting date: October 28, 2003 Thread Title: Funny Indian story Post #5 What is really irritating is that we have among us sympathizers for these red savage Indians, wn's who actually like Indians as equals and friends. Same goes for the homos sympathizers. Just look at the Indian and homo threads and you can see how apperantly so called solid wn's are saying stuff like we took their land, we owe them, they are noble people and about homos you will read stuff like as long as they are white then they are my kin. Gross to say the least. If folks just posted bad new from their local area that deals with Indians, then it would take up more space on the forum then any other thread ever started. Evil, that's the nature of the Indians. (sic throughout) (i) Posting date: November 18, 2003 Thread Title: Native Robbery Post #2 Sooner or later those Indians all break the law, its (sic) in their DNA to be bad. (j) Posting date: November 21, 2003 Thread Title: If You Like Injuns, Then don't read this. Post #49 In a previous posting by someone using the pseudonym Time to Unite states: they [Aboriginal Canadians] are nothing but dirt lazy diseased infested parasites who should be put out of their so called misery, and at least they would be doing something good; being enriched soil for plants. The response to this by proud 18 is as follows: Good one, I thought that was their purpose in life. They have no other benefit to society but fertilizer. [ ] Picture how much better our life would be if there were no damn injuns? All those 10's of BILLIONS of dollars we give them each year could give us the best health care and schooling in the world. Indians are filthy savages and whoever thinks otherwise is a Injun lover and race traitor PERIOD. To those who like these savages tell me ONE benefit they have and one lousy contribution to society. Just one. And none of this stupid we took their land crap. Because the non-whites have taken our ancestrol land in Europe AND they pay the white folks f-all for living there. Just one instance that a injun is good, . I can hear a pin drop in the forest with this defining silence. (k) Posting date: November 25, 2003 Thread Title: If You Like Injuns, Then don't read this. Post #64 In a posting dated November 25, 2003, proud18 responds to the following posting by someone using the pseudonym WhiteFusion: How about we make the natives have to answer a skill testing question before receiving their money. Proud18's response is as follows: Since they have very low primitive IQ's then they would never see a single penny. Great idea. (l) Posting date: February 10, 2004 Thread Title: If You Like Injuns, Then don't read this. Post #66 The violence by these scum injuns on innocent white people is getting out of control. We must do something soon to prevent further attacks on our race. (m) Posting date: February 10, 2004 Thread Title: This will blow your mind Post #1 Proud18 comments on an appeal of an Aboriginal man's criminal sentence in the following terms: So in closing our justice system is no longer equal for all citizens, if you are a injun you can get away with murder just because one is a injun. No wonder they commit most of the crime in Canada. They have the courts on their side and they act like it. Canada needs saving ASAP. (n) Posting date: February 20, 2004 Thread Title: If You Like Injuns, Then don't read this. Post #73 Savages should not be restricted to reserves but should be confined to ZOO's. (o) Posting date: February 21, 2004 Thread Title: If You Like Injuns, Then don't read this. Post #76 These savages don't learn anything, unless it is being a savage beast that should not be put among civilized people. (p) Posting date: February 27, 2004 Thread Title: Something funny about Harper Post #5 The injuns say they migrated from asia so lets offer them free one way tickets and a case of Lysol / glue and they wont know where they are going. Then we could regain our rightful place as the first white Euro people on this continent. Black and Other Non-Caucasian People The following are examples of some of proud18's postings on the Canadian forum of stormfront.org regarding Black and other non-Caucasian people. (a) Posting date: November 22, 2003 Thread Title: Alberta / Sask. / Manitoba Party? Post #1 Personally I'm getting a bit tired every time I read about a injun tribe beating a white kid to death because they lost their land to our forefathers. I'm sick and tired of reading about some nig-nog raping a white woman. You can only hear it so many times before YOU FINALLY HAVE TO GET UP AND DO SOMETHING ABOUT THE PROBLEM. (sic throughout) (b) Posting date: November 24, 2003 Thread Title: What will it take to motivate us? Post #3 So we wait for things to get much more worser before people do something. Weak people is all I got to say to that. These same people would sit by watching their kids get molested by nigs I assume. (sic throughout) (c) Posting date: November 27, 2003 Thread Title: mandatory birth control for welfare recipients Post #16 The non-whites who pop out kids just to get more welfare money are the ones who should be castrated. these non-white scum that crawl here from all the garbage infested countrys get treated better then a good Aryan woman. (sic throughout) (d) Posting date: November 30, 2003 Thread Title: 2 black serial rapists of white women Post #1 Since summer two bald nigs have been raping women in the Clearview part of town. They targed women at bus stops. Yesterday they raped a 17 year old. What is shocking is that this is the first time the public is hearing about the many rapes by these two bald blacks with bad English. 7 women have been raped now. If it is not injun killers it is black rapists. How come the feds can say that most serial killers are white males but you cant even make it public that in Canada over 50% of the rapes are commited by blacks? Maybe then white women would avoid blacks. One of those women should sue the city and cops for knowing black serial rapists are on the loose but due to their colour the cops didn't want to say 2 black rapists. This country is going down the toilet real fast. (sic throughout) (e) Posting date: December 1, 2003 Thread Title: 2 black serial rapists of white women Post #6 These blacks in Africa go around screwing monky's / zebras and everything else that is around. They come here and have no animals to screw so they resort to raping women. They should still be in the jungle and not among civilized people. Some are canibals other are head hunters and this is what is moving in next door to you. (sic throughout) (f) Posting date: January 13, 2004 Thread Title: Enemies of our movement Post #4 If I had to choose just one group that I think is holding us down. That would have to be my own people. The nigs / pakis / Asians etc. are easy to spot and identify as a enemy so they can be prepared for. But the peace loving liberal multicultural homo loving whites are the biggest thret to our future. We have to be cautious of what we say or do in front of our own kind. We are supposed to be one mighty race and these lemmings bought into this love thy mud crap and over time forgotten how to be proud of our race. Whithout our race the world would still be living in mud huts and caves. (sic throughout) Jewish People The following are some of proud18's postings on Stormfront.org that relate to people of the Jewish faith. (a) Posting date: November 24, 2003 Thread Title: American seeking CDN Jew princess Post #1 This millionar piece of crap said he wants a Canadian woman for a wife but only Jews need aply. The 3 finalist jew sluts are all from Toronto. I wonder if his jew friends in the media gave him such huge press coverage to promote the jew crap whore. At least there will be one less jew in Canada. (sic throughout) (b) Posting date: November 23, 2003 Thread Title: What will it take to motivate us? Post #1 Just qurious as to what each of us considers the final straw. Lot of us have our hearts in the right place but there is those dreaded excuses of have to watch what I say atwork, don't have time to do anything etc. There seems to be a barrier that prevents some of us to cross the line and realy become active in any way possible. I did a poll on general rants and most of us here spend over 3 hours a day on the computer. That's a whole day [almost] out of each week that you could do some pro-white activities in real life. We all have our storys of how crapy it is where we live. We have less and less rights. Hell we are a endangered species. Whites by popullation are the biggest minority in the world. Jews have taken over our education, our media, our governments, etc. (emphasis added) Lots of super reasons to get fully commited to the cause. We who are 24/7 commited all have our storys of how we seen the truth of a event that opened our eyes. What I would like to ask of those that still are not too sure of what they want to do or if the 14 words is for them. What event would it take to have you cross that line and become a true white patriot? If a black raped your spouce or child? If you got beat up and mugged by a tribe of Indians? What would it take? Or is common sence and good judgement good enough for you to see that your race needs all hands on deck? And also at this time i'd like to ask some of those that have all ready seen the truth and decided the white race is worth fighting for , to share your story's with us. If you feel comfortable. (c) Posting date: November 30, 2003 Thread Title: 2 black serial rapists of white women Post #8 In response to a question asking what about the race of the victims of a number of alleged rapes, proud18 replies: At least two were white. But it is now only 4 rapes, yesterday it was reported as 7 victims and possibly more of the ones that didn't report it. Serves the white women right for even talking to nig-nogs. But did you notice on the bottom of the story they put in a sentence about a teen getting raped by a White male in the city? That has nothing to do with the black serial rapists. But I guess the jew media had to point out that white males also commit rapes. (emphasis added) (d) Posting date: January 6, 2004 Thread Title: Nazi suspect to be targeted Post #3 In response to a posting that provided excerpts from a news stories about the plans of the Justice Minister at the time, the Honourable Irwin Cotler, to bring suspected Nazi war criminals to justice, proud18 writes: Any wonder who he is going to target? Once a jew always a stinking jew. The commies are coming, The commies are coming. Roma The following are excerpts from proud18's postings on stormfront.org that discuss Roma: Posting date: November 30, 2003 Thread Title: Isnt that a waste ? Post #2 Back in Europe people bring their own bags and buggys to go shopping. The dirty streets come from one filthy group of Hindus called Gypsies. (b) Posting date: February 27, 2004 Thread Title: Something funny about Harper Post #5 In response to a suggestion that Aboriginal Canadians should be given a one-way ticket to India, proud18 states: That is what the Czech Republic did with the Gypsy problem about 5 years back. They took out ads saying the Government will pay for a one way ticket to Canada. I know they should of offered their homeland which is India. But the Gypsys left India so why go back and to what? This way they jumped at the chance for Canada. They talked about [in the ad] how in Canada they will get paid to stay at home and not work. Canada would give them FREE access to all health and education etc. Some of you may remember that. Soon after the Canadian government announced all Czech citizens must now apply for a visa [not the credit card]. They solved a lot of their problems. You know who they picked first? All the biggest theifs / murderes / molestors / pimps etc. People of the Muslim Faith The following posting by proud18 regarding people of the Muslim faith was entered into evidence: There is a law that prevents a person from wearing a mask. It is not enforced much but it is there. Muslim women wear their faces covered, is that not a crime then? You get 5 of them all masked and one throws a granede (sic). How can anyone recognize the terrorist? We are letting them into the country with a disguise and its okay? Damn government. People of the Hindu Faith The following postings made by proud18 on stormfront.org were entered into evidence at the hearing: a. Posting date: January 4, 2004 Thread Title: 2 dead, 4 injured. Yipee. Post #1 Well the hindus are fighting a turf war in Vancouver with the Asians. Saturday in a nightclub in town there was a brawl between these two rival groups. The end and joyful result was 2 shot to death and 4 wounded. 2 of the 4 are in critical care. This is a great way to start the New Year. The dead include a white woman in her 20's that was with the Asian gang. Even though she was white I have no pity for this race traitor. She chose to be around them and now she died with them. A just ending. (b) Posting date: May 4, 2004 Thread Title: Foreigner trys (sic) to spread HIV in Canada Post #4 In response to a posting made about the conviction of an individual who transmitted HIV to three women, proud 18 writes: Serves the women right, screwing a hindu. Hope they get it and fast.

2006 CHRT 51

CHRT

Center for Research-Action on Race Relations v. www.bcwhitepride.com

en

2006-11-23

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6767/index.do

2023-12-01

Center for Research-Action on Race Relations v. www.bcwhitepride.com Collection Canadian Human Rights Tribunal Date 2006-11-23 Neutral citation 2006 CHRT 51 File number(s) T1120/0206 Decision-maker(s) Jensen, Karen A. Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE CENTER FOR RESEARCH-ACTION ON RACE RELATIONS Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - WWW.BCWHITEPRIDE.COM Respondent RULING 2006 CHRT 51 2006/11/23 MEMBER: Karen A. Jensen [1] The Canadian Human Rights Commission has requested that the Tribunal issue a subpoena duces tecum for Mr. John Beck in this matter. The Commission argues that Mr. Beck's evidence is required for the motion that will be presented at the outset of the hearing, to add him as a party. [2] Mr. Beck's agent, Mr. Paul Fromm, argues that it is inappropriate to order Mr. Beck to appear as a witness and to produce evidence that might establish his liability. In the event that the Tribunal rules that Mr. Beck should be added as a party, his right not to testify at the hearing would thereby be violated. [3] Section 5(1) of the Canada Evidence Act stipulates that no witness shall be excused from answering any question on the ground that the answer to the question may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person. On the basis of this provision and comparable provisions in provincial legislation, it has been said that in general, all parties to civil proceedings are competent and compellable to give evidence at the instance of any of the other parties (Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 2nd ed. (Toronto: Butterworths, 1999), at p. 704; see also: Ayotte v. Canada (Royal Canadian Mounted Police) [1961] S.J. No. 111 (SKQB) ((Q.L.). [4] I find, therefore, that Mr. Beck is a compellable witness in the inquiry into the present complaint. [5] The Commission has requested that Mr. Beck bring with him all arguably relevant evidence relating to the websites www.bcwhitepride.com and www.bcwhitepride.org including: (1) all contract(s) with internet providers since 2004 to this day; (2) all emails he used to communicate on internet; (3) all information regarding body building competitions he was involved in as attested in the e-mails contained as exhibits as part of the already mentioned Motion to add parties to this complaint which was ruled upon to this day. [6] Mr. Fromm argues that the request for the above-noted documents is far too broad, amounts to a fishing expedition and includes irrelevant material such as the documentation concerning body building competitions. [7] Item one is sufficiently clear and not overly broad. The material is arguably relevant to the question of the identity of the communicator of the impugned messages. Therefore, if this material is in Mr. Beck's possession, he must bring it with him to the hearing. [8] Item two appears to cover all e-mail correspondence that Mr. Beck has ever had with anyone. This would be an overly broad request. However, when read in context, it would seem that what is requested is simply all e-mail correspondence associated with the aforementioned websites. Such material is arguably relevant. Mr. Beck must bring this material, if it is in his possession, with him to the hearing. [9] Item three allegedly relates to the identity of the communicator of the impugned messages and the individuals behind the Respondent website. In his Affidavit, sworn May 11, 2006, Mr. Shane Martinez deposed that Mr. Beck identified himself to Mr. Martinez as the co-founder of BC White Pride and the author of the material on the Respondent website. Mr. Martinez deposed that Mr. Beck also identified himself as a professional body builder. [10] The Commission has indicated that it will be calling Mr. Martinez to testify regarding the identity of the communicator of the messages and the issue of whether Mr. Beck should be added as a Respondent to the complaint. These are live issues in the present complaint. I find that material relating to Mr. Beck's involvement in the body building competitions referred to in the e-mails attached to Mr. Martinez's Affidavit is arguably relevant to these issues and therefore, Mr. Beck should bring this material with him to the hearing. [11] A subpoena duces tecum will be issued for Mr. Beck's attendance at the hearing into this matter. Signed by Karen A. Jensen OTTAWA, Ontario November 23, 2006 PARTIES OF RECORD TRIBUNAL FILE: T1120/0206 STYLE OF CAUSE: Center for Research-Action on Race Relations v. www.bcwhitepride.com RULING OF THE TRIBUNAL DATED: November 23, 2006 APPEARANCES: Fo Niemi For the Complainant Giacomo Vigna For the Canadian Human Rights Commission Paul Fromm For the Respondent

2006 CHRT 52

CHRT

Warman v. Glenn Bahr and Western Canada for Us

en

2006-12-01

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6764/index.do

2023-12-01

Warman v. Glenn Bahr and Western Canada for Us Collection Canadian Human Rights Tribunal Date 2006-12-01 Neutral citation 2006 CHRT 52 File number(s) T1087/6805, T1088/6905 Decision-maker(s) Lloyd, Julie C. Decision type Decision Decision status Final Grounds Colour Disability National or Ethnic Origin Race Religion Sexual Orientation Decision Content Between: Richarm Warman Complainant - and - Canadian Human Rights Commission Commission - and - Glenn Bahr - and – Western Canada For Us Respondents Decision Member: Julie Lloyd Date: December 1, 2006 Citation: 2006 CHRT 52 Table of Contents I. The Complaints. II. What Circumstances Gave Rise To The Complaints?. III. What Questions Need To Be Addressed In This Case?. A. What is the material that is alleged to violate s. 13 of the CHRA?. (i). The literature available for download from the website. (a). The International Jew.. (b). White Power. (c). The Turner Diaries. (ii). Postings made to the discussion forum on the website. (a). The Treaty Song Posting. (b). Homosexual posting #1. (c). The Application post (d). Homosexual posting #2. B. Was the impugned material communicated in whole or in part by means of a telecommunications undertaking within the authority of Parliament?. C. Was the impugned material communicated repeatedly?. D. Was this material likely to expose a person or persons to hatred or contempt by reason of the fact that such person or persons are identifiable on the basis of a prohibited ground of discrimination?. E. Did the Respondent, Glenn Bahr, communicate, or cause to be communicated, the impugned messages from the above noted sources by means of the Internet?. (i). Was the respondent, Glenn Bahr, the person posting messages on the WCFU website under the pseudonyms SS-88 and Glenn?. (ii). Did Glenn Bahr have control over the WCFU website?. (iii). Did Glenn Bahr communicate, or cause to be communicated, the material available for download on the WCFU website?. (iv). Did Glenn Bahr communicate the impugned postings as alleged?. F. Did the Respondent, WCFU communicate, or cause to be communicated, the impugned material?. (i). Preliminary Issue: Is the Respondent, WCFU, a group of persons for the purpose of s. 13(1)?. (ii). Did WCFU communicate the impugned material?. IV. Remedies. A. An order that the discriminatory practice cease (s. 54(1)(a)) B. Penalty. I. The Complaints [1] The complainant, Richard Warman, has filed a complaint alleging that in 2004, Glenn Bahr and Western Canada For Us (WCFU), communicated messages over the Internet that would likely expose Jews, First Nation Canadians, gays, lesbians, bisexuals, blacks, other non-whites and the mentally disabled to hatred and/or contempt within the meaning of section 13(1) of the Canadian Human Rights Act (CHRA). [2] The Canadian Human Rights Commission fully participated at the hearing into the complaint and was represented by legal counsel. Mr. Warman and Mr. Bahr attended at the hearing and neither were represented by legal counsel, though it is noted that Mr. Warman is himself a lawyer. Mr. Bahr was represented by Mr. Paul Fromm. Mr. Fromm is not a lawyer. Mr. Bahr did not give evidence at the hearing. [3] The respondent, WCFU, did not appear at the hearing and was not represented by counsel. In an earlier written submission, Mr. Fromm alleged on behalf of WCFU that it was not a proper party to this complaint as it was neither a person nor a corporation. While this respondent did not appear at the hearing, I will deal with the substance of its position in these reasons. II. What Circumstances Gave Rise To The Complaints? [4] Mr. Warman alleged that in the early months of 2004 he became aware of a group called Western Canada For Us (WCFU). In March of 2004 WCFU established a webpage on the Internet. The complainant viewed the content of this website and believed that some of the content violated s. 13 of the CHRA. Mr. Warman alleged that he was able to determine that the Respondent, Glenn Bahr, was the leader of WCFU, and that this respondent was instrumental in first the creation and later the control of the website. Mr. Warman filed the present complaint in June of 2004. III. What Questions Need To Be Addressed In This Case? [5] The following questions must be addressed in considering this complaint: A. What is the material that is alleged to violate s. 13 of the CHRA? a.) The material available for download from the website: The International Jew White Power The Turner Diaries b. Postings made to the discussion forum on the website The Treaty Song posting The Homosexual posting #1 The Application posting The Homosexual posting #2 B. Was the impugned material communicated in whole or in part by means of a telecommunications undertaking within the authority of Parliament? C. Was the material communicated repeatedly? D. Was this material likely to expose a person or persons to hatred or contempt by reason that such person or persons are identifiable on the basis of a prohibited ground of discrimination? E. Did the Respondent, Glenn Bahr, communicate or cause to be communicated the impugned material? Was the person employing the monikers SS-88 and Glenn on the WCFU website Glenn Bahr? Did Glenn Bahr control the WCFU website? Did Glenn Bahr communicate, or cause to be communicated, the literature available for download on the website? Did Glenn Bahr communicate the two posts made by SS-88 on the WCFU website? F. Did the Respondent, WCFU, communicate, or cause to be communicated, the impugned material? Preliminary issue: Is WCFU a proper party to this complaint? Did WCFU communicate, or cause to be communicated, the literature available for download on the site? Did WCFU communicate, or cause to be communicated, the postings made on the discussion forum? [6] I find, for the reasons set out herein, that the material in question is of a quality that falls within the ambit of s. 13(1) of the CHRA. I find further that both Glenn Bahr and WCFU communicated the material or caused the material to be communicated as contemplated in that section. I find that the complaint is substantiated against both of the respondents. A. What is the material that is alleged to violate s. 13 of the CHRA? [7] Two snapshots of the WCFU website were introduced into evidence. The snapshots were copies of the entire website that had been downloaded onto computer discs. One snapshot was taken on March 31, 2004 and the other on May 7, 2004. The discs containing these snapshots were entered into evidence at the hearing. Most of the material alleged to fall within s. 13 of the CHRA was contained in these snapshots. [8] The homepage of the WCFU website contains a number of links that assist a viewer in navigating a site. When a link is selected by the viewer, he or she is quickly moved to the corresponding section of the website. Much of the impugned material was located in the Downloads section of the website. (i) The literature available for download from the website [9] The Downloads link lead to a menu of literature contained on the website. The material could be viewed on the website, printed, or downloaded by a person to their own computer. The complainant alleges that the following literature contained in this section of the website fell within the ambit of s. 13 of the CHRA. (a) The International Jew [10] The International Jew is a book written by Henry Ford and first published in the early 1920s. The thesis of this book is that Jewish people across the world are actively engaged in a global conspiracy to obtain control of the world’s finances and the world’s governments. The Jews are described in this book as being well on their way to global domination, controlling many industries in the United States and elsewhere, as well as controlling many of the world’s governments, the entertainment industry and much of the world’s news media. [11] This book describes how, by manipulating the industries they control, Jews create disruption aimed at weakening and ultimately destroying non-Jewish civilization, described as Christendom. Financial control is exercised to cause economic strife. The author states: the amount of our National debt is the measure of our enslavement to Jewish World Finance. Jewish control of liquor and tobacco industries allows the Jews to promote these commodities for the purpose of further weakening Christendom; control of the entertainment and other media is used to entice Christendom to debauchery and excess, thereby weakening its social and moral fabric. [12] According to the book’s author, one of the strategies employed by the Jews to achieve their goal of world domination was to encourage the immigration of non-white persons into Christian society, and at the same time to promote the values of tolerance and liberalism. The Jews, the book states, use their control over the media to confuse citizens by extolling what the author describes as the poison of liberalism. Members of Christian society are tricked into embracing tolerance and liberal values and are made to feel guilt over racist thoughts or opinions. In the result these non-white immigrants, depicted as an inherently destructive force in Christian society, become empowered and entrenched. [13] Jewish people are described as unscrupulous, deceptive, dishonest and immoral. The author urges that Jews have engineered most of the world’s ills, revel in them and rely on them as essential steps in their thirst for world domination. The solution to the Jewish problem is to eliminate Jews from Christian society. (b) White Power [14]White Power was written by George Lincoln Rockwell, the then leader of the American Nazi Party, and published in the mid-1960s. The thesis of this book is summarized in the following excerpt (page 88): There you have the Jewish-Communist program in a nut shell - the USE of the backward, childish and savage Negro race to destroy the White Race, which stands between the Jews and their mad goal of domination from Israel. The Jews, comprising only a fraction of one percent of the world’s people, are too few to produce their own mobs, and they are too un-fond of physical violence to provide any amount of their own muscle. They need vast numbers of peanut-brained, violent but robot-like troops. The Negro race is perfect for the needs of the Jews in fomenting their mutiny. But before the blacks can do the Jews and the Marxists any good, they must first be placed in position and conditioned. [15] This book, like the International Jew, discussed above, speaks of the Jewish program of encouraging tolerance and multiculturalism; a program designed to destroy the white race. The aim of this deception is to destroy the spirit of the elite White Race, filling members of the white race with guilt over any inclination toward racism. Non-white persons are assimilated into white society and empowered so that the Jews, . . . and their army of mongrels (will) overwhelm the White champion of civilization by sheer numbers. (c) The Turner Diaries [16]The Turner Diaries is a book written by William Luther Pierce, the leader of the National Alliance, a White Supremacist group with origins in the United States of America. This book, a work of fiction, presents the story of a white revolutionary named Earl Turner and his organization of white people, that wages a violent racial revolution in the United States in violent opposition to the Jews, and to what is described as the equality hoax perpetrated by the Jews. The struggle escalates to a global genocide, and leads to the extermination of all Jews, all non-whites and those whites who associate or sympathize with Jews or non-whites. The violence depicted in this work is horrific. Jews, described as Satan’s spawn, are shot, stabbed, burned alive and hanged singly and in groups, as are other non-whites and race criminals - those who support or associate with non-white persons or groups. (ii) Postings made to the discussion forum on the website [17] The WCFU website contained a discussion forum that allowed individuals to post material on the site. The forum was organized into different topic threads, and people were invited to contribute comment or material to the threads. The complainant, Richard Warman, testified that while one had to be a registered member to contribute, membership could be obtained quickly and easily on the website by providing minimal information. The postings to the forums contained numerous typographical errors. What follows are verbatim transcriptions of the impugned postings with no editing for spelling or grammar. [18] The Complainant identified two postings alleged to come within s. 13 and alleged to have been made by the Respondent, Glenn Bahr. (a) The Treaty Song Posting [19] On March 18, 2004, SS-88, a pseudonym the complainant and the Commission allege to have been used by the respondent, Glenn Bahr, made a posting to the WCFU site titled The Treaty Song. This posting was not contained in either of the two snapshots of the website filed in evidence. This Tribunal heard evidence that the posting was discovered on the WCFU website on or about March 18, 2004, and downloaded. The posting, a copy of which was filed as an exhibit in the hearing, read in part as follows: Well I wish I had my treaty card in this land of equality, I wouldn’t have to work I could party all night and sleep till after three. I’d get a big fat squaw that could pop out kids at the rate of two a year. I’d get a pretty good welfare cheque, play the VLTs and I’d never run out of beer. . . . Well I wish I had a treaty card in this land of equality, cause if my house burned down or I just smashed it up, well I wouldn’t frown I’d get another one from whitey for free. I wouldn’t have to work or go to school, I wouldn’t have to pay not tax. I’d just hold out my hand and say you stole my land and I’d be riding on the gravy train! I sure wish I had a Treaty card. (b) Homosexual posting #1 [20] On March 10, 2004, SS-88 made a posting to a discussion thread on the WCFU website titled, Homosexuals. This posting was included in one of the two snapshots of the website filed as evidence in the hearing and read in part as follows: I believe no matter how or why you are a homosexual your life should be terminated. . . They should be terminated along with retards and any other degenerates that nature would do away with in the wild. What gives us the right to prolong a life that would have been terminated by nature. (c) The Application post [21] The complainant alleges that certain postings alleged to have been made by persons other than the respondent, Glenn Bahr to the WCFU discussion forum also fall within s. 13. The first was posted by a person using the pseudonym, TowerDB. This posting was not included in either of the webpage snapshots. The Tribunal heard evidence that the posting was discovered on the WCFU website on or about March 18, 2004 and downloaded. A copy of the posting was entered as an exhibit during the hearing and reads in part as follows: APPLICATION TO BE A INDIAN Department of Indain & Unimportant Affairs . . . Address (if living in automobile, give make, model and licence number) Name of Mudder Name of Fudder Automobile (Check One) __ Cadillac __ Buick __ Stationwagon If Auto is financed, what is the repossession date? Color of car __ Blue __ Pink __ Multi __ Primer __ Other Approximate estimate of Income ____ Welfare ___ UIC ___ Theft ______ Beer bottles Place of Birth __ Hospital __ Back Alley __ Ditch __ back of car Tools or Machines you can opperate __ Crowbar __ Pinball __ Knife __ Bingo Dabber __ Match __ TV Remote __ Slot Machine __ Other Check Illnesses you had the last year __ Vanilla Poisoning __ Alcohol Poisoning __Lung Burns (due to gasoline inhalation) __ Other Number of Children __ 1St Wife __ 2nd Wife __ 3rd Wife __ Neighbor’s Wife __ Shackups . . . Have you ever been arrested? __ Yes __ No If No, Explain. How many refrigerators and junk cars are in your front yard: ____________ Other than living for free and drinking all the taxpayers money away, what is your greatest goal in life besides nothing? (d) Homosexual posting #2 [22] A second posting was made by a person using the pseudonym WhiteEuroCanadian. This person contributed a posting to the discussion forum thread titled Homosexuals on March 9, 2004. The posting was included in the website snapshot and read in part as follows: These are not human beings, they are sexual perverts in the same category as pedophiles, beastiality, S&M etc. Why in the world of descent morals must the majority of the population be subjected to sexual divients like homosexuals? It is a SEX thing. Why give them special status that normal Canadians enjoy? . . . B. Was the impugned material communicated in whole or in part by means of a telecommunications undertaking within the authority of Parliament? [23] S. 13 of the CHRA was amended in 2001 by the addition of s. 13(2), which reads as follows: For greater certainty, subsection (1) applies in respect of a matter that is communicated by means of a computer or a group of interconnected computers, including the Internet, or any similar means of communication . . . [24] The amendment clarifies that section 13(1) applies to matters communicated by means of the Internet. I find that the impugned material communicated was communicated for the purposes of s. 13. C. Was the impugned material communicated repeatedly? [25] The CHRA requires in s. 13(1) that material be communicated repeatedly. Member Sinclair, in his decision in Schnell (supra) considered the meaning of this word for the purpose of the section. Member Sinclair found that the requirement of repetition in s. 13(1) suggests that the section is directed not at private communication, but rather at material intended for wider, public circulation (See also Warman v. Kyburz [2003], CHRT 18 at para.10). [26] While there was no evidence led about the number of persons who viewed each of the impugned communications, I note that the March 31, 2004 snapshot of the website indicates that on that date, a mere three weeks after the website had been established, the discussion forum had received 1,193 postings and the website identifies that 90 persons had registered as members on the site. The May 7, 2004 snapshot of the website indicates that membership had grown to 205 members, and that there had been 2,848 postings made to the website. Further, the material was available to the complainant and any person who accessed the website from their computer by means of the Internet. The website was not a private communication, but was intended for wider, public circulation. I find that the material on the website was communicated repeatedly. D. Was this material likely to expose a person or persons to hatred or contempt by reason of the fact that such person or persons are identifiable on the basis of a prohibited ground of discrimination? [27] This Tribunal and the courts have canvassed thoroughly the proper interpretation of the words likely, expose, hatred and contempt. [28] S. 13(1) provides that to fall within the ambit of s. 13(1), material must be likely to expose a person to hatred or contempt. This means it is not necessary for a complainant to lead evidence that a person was actually moved to hatred or contempt by the communication of the material (Schnell, (supra) at para. 88, and see Nealy v. Johnston (supra), at para. 45657). [29] The word expose has also been considered by this Tribunal. In Nealy the Tribunal contrasted this word with the words of incite and promote, that are used in various sections of the Criminal Code (Nealy, supra, at para. 45657). Expose, the Tribunal found, is a more passive word than is incite or provoke and means leaving one unprotected, or to lay one open to danger, ridicule, or censure. Incite, on the other hand, has a more active connotation and means to stir up, while promote means to encourage or to support actively. It is clear that the legislature intended that s. 13(1) of the CHRA capture a wider range of expression than that contemplated in the Criminal Code. In another case, the Tribunal found that . . . if one is creating the right conditions for hatred to flourish, leaving the identifiable group open or vulnerable to ill-feelings or hostility, if one is putting them at risk of being hated . . . one then falls within the compass of s. 13(1). (Canadian Human Rights Commission v. Western Guard Party and John Ross Taylor, (July 20, 1979) (Can. Trib.; Leddy, Lederman and Volpini) [unreported], at page 29). [30] This Tribunal and the courts have also considered the proper interpretation of the words hatred and contempt. In a decision considering the constitutionality of s. 13(1), the Supreme Court of Canada observed a tension fundamental to the interpretation of the section. While human rights statutes, because of their nature as fundamental law, are to be accorded a generous and purposive interpretation, that purposive interpretation cannot extend so far as to permit the limitation of the freedom of expression guaranteed under s. 2(b), unless the limitation can be justified under s. 1 of the Charter (Taylor (Canada (Human Rights Commission) v. Taylor [1990], 3 S.C.R. 892, at para. 59). [31] In upholding the constitutionality of the section, Dickson J. found that the objective of s. 13(1) of the CHRA is to protect the equality and dignity of all persons by reducing the incidence of harm causing expression. He found that an interpretation of the words hatred and contempt, if undertaken with a full understanding of this purpose, would be a reasonable limit on the freedom of expression. (Note: in Taylor, the Supreme Court of Canada was considering the constitutionality of s. 13(1) in the context of transmission of material by telephone. A more recent decision of this Tribunal found s. 13(1) to be a reasonable limit on the freedom of expression in respect of material communicated by means of the Internet. This decision relies heavily on Taylor, and repeats the definitions of hatred and contempt. (Citron v. Zundel, [2002], T.D. 1/02.) [32] Dickson J. describes the profound harm visited on targets of messages of hatred. Referencing numerous studies on the effects of hate messages, Justice Dickson explains that hate propaganda can undermine the dignity and self-worth of target group members, and more generally contribute to disharmonious relations among various racial, cultural and religious groups, as a result eroding the tolerance and open-mindedness that must flourish in a multicultural society which is committed to the idea of equality. (Taylor, supra, at para. 41) The purpose of s. 13(1) is to prevent this harm. [33] The Supreme Court in Taylor adopts the interpretation of the words hatred and contempt that was provided by this tribunal in Nealy v. Johnston (1989), 10 C.H.R.R. D/6450. The core meaning of hatred is described by that Tribunal as a set of emotions and feelings which involve extreme ill will toward another person or group of persons, an emotion that would admit no redeeming qualities for the individual or group. The core meaning of contempt is a set of emotions similarly extreme and which involve feelings of superiority over the individual or group, or that of feelings of the group’s inferiority (Taylor, supra, at para. 60, Nealy, supra, at p. 928) [34] The terms hatred and contempt for the purpose of s. 13(1) refer to unusually strong and deep-felt emotions of detestation, calumny and vilification. (Taylor, supra, at para. 61). [35] Reviewing the impugned material, I find, for the following reasons, that each are likely to expose a person or group of persons, identifiable on a prohibited ground, to hatred or contempt as those words are interpreted in Nealy. [36] The International Jew posits a theory that the Jews are the engineers of the woes of the (non-Jewish) world and have a covert plan of global domination. Jews as a group are described as unscrupulous, deceptive, dishonest and immoral. The book advocates that the Jews must be removed from society. The thesis of this book and the description of the personal characteristics of Jewish persons is likely to evoke extreme ill will against Jewish persons. [37] The book White Power describes persons of African descent in the most contemptible of terms. Descriptors of backward, childish, savage, peanut-brained deny to this group of persons any redeeming qualities and express emotions of extreme ill will and vilification. Indeed, the words deny the very humanity of these persons (i.e. robot-like). The book also expresses extreme ill will against Jewish people, who are described as intent on destroying the white race. [38] The book, The Turner Diaries, describes in lurid fictional detail, the global genocide of Jews, other non-Whites, and those who would associate with them. This genocide is undertaken because of the equality hoax perpetrated by the Jews and designed, as described in the International Jew and White Power, to destroy the white race. While a fictional account, a reader cannot help but conclude that this book advocates for the genocide of these people on the basis of their membership in groups protected under the CHRA. The book constitutes a profound denial of the humanity of Jews and others. It expresses extreme ill will and denies any redeeming human quality to members of these groups. [39] I find that these three books made available for download on the WCFU website meet the test in Nealy. Each of them is likely to expose a person or persons to hatred or contempt by reason of the fact of their membership in a group protected under s. 2 of the CHRA. [40] The posting, The Treaty Song suggests that aboriginal, or First Nation Canadians, are given licence to be, and are, non-contributing citizens. It goes further to suggest that these people do not work, are alcoholics, are on welfare, gamble excessively, destroy their own property, are sexually promiscuous and irresponsible. I find this posting is a sweeping and gross caricature of aboriginal Canadians. It is an expression of extreme ill will and of utter contempt. [41] The posting made by SS-88 to the discussion thread titled Homosexuals advocates for the termination of the very lives of homosexuals and retards. Advocating wholesale extermination of the members of these groups is a complete denial that members of these groups might have redeeming qualities and is an expression of extreme ill will. [42] The posting, Application to be a Indian, suggests that First Nations or aboriginal Canadians live in and are born in cars, that their sources of income are restricted to welfare, unemployment insurance, the proceeds of theft and bottle picking and that these persons are promiscuous, lazy, illiterate and violent. The portrayal of aboriginal Canadians in this posting is odious, evocative of extreme ill will and profound contempt. [43] The posting made by WhiteEuroCanadian to the discussion thread titled, Homosexuals denies that homosexuals are human beings. Such a denial, a rejection of the very humanity of persons belonging to this minority group, is an expression of extreme ill will, and is hatred and contempt for the purpose of s. 13(1). [44] The Respondent, Glenn Bahr, argued that the material identified in the complaint is a form of legitimate political expression and does not violate s. 13(1). I would paraphrase the observations of this Tribunal in Nealy and reply that the line between legitimate expression and illegitimate expression arises from the manner in which any political discourse is pursued. Whether or not material might be connected to a political or other opinion, and whether or not the material might arise from a deeply held belief of the communicator, the material will violate s. 13(1) where it exposes others to hatred or contempt on the basis of their membership in a group protected under the CHRA, and I find that the material considered in this decision does so. E. Did the Respondent, Glenn Bahr, communicate, or cause to be communicated, the impugned messages from the above noted sources by means of the Internet? [45] The complainant and the Commission allege that the respondent, Glenn Bahr, communicated some of the impugned material, or caused it to be communicated. The complainant and the Commission allege that this respondent communicated the literature contained in the Downloads part of the website and that he communicated the postings made by SS-88. It is alleged that Glenn Bahr, used the pseudonyms of SS-88 and Glenn on the WCFU website and further that he contributed the two postings made by SS-88. It is further alleged that Glenn Bahr, either alone or with others, controlled the WCFU website and therefore, either alone, or acting with others, communicated or caused to be communicated the impugned material contained in the Downloads section of the website. (i) Was the respondent, Glenn Bahr, the person posting messages on the WCFU website under the pseudonyms SS-88 and Glenn? [46] The complainant and the Commission allege that the person using the website user names or pseudonyms of SS-88 and Glenn on the WCFU website was the respondent, Glenn Bahr. I find for the following reasons that the person communicating the material under the pseudonyms SS-88 and Glenn was the respondent, Glenn Bahr. [47] Sergeant Steven Camp, of the Edmonton Police Service Hate Crimes Unit, testified at the hearing as a witness for the Commission. The Sergeant testified that he had conducted an investigation of the WCFU and Glenn Bahr during the time relevant to this complaint. It was the Sergeant who made the website snapshots discussed earlier and who downloaded the Application posting and the Treaty Song posting from the website. Sergeant Camp testified that as a result of his investigation of Mr. Bahr and the WCFU website, Glenn Bahr had been charged under section 319(2) of the Criminal Code of Canada, being the provision prohibiting the wilful promotion of hatred. At the time of the hearing of this complaint, there had not yet been a trial commenced in relation to the Criminal Code charge. [48] Sergeant Camp testified that as part of his work in the Hate Crimes Unit, he monitored Internet websites. Among the websites monitored by the Sergeant, were sites that in his opinion contained neo-Nazi and white nationalist content. The Sergeant testified that he monitored these sites looking for evidence of activity in Edmonton that might be of interest to the Unit. One such site is an American based website called stormfront.org. The Sergeant testified that this website has discussion forums designated for different countries, including Canada. [49] Sergeant Camp testified that he noticed, in the Canada forum, a series of discussions about the creation of a community in the Province of Alberta to be called Whiteville. One contributor to these discussions used the pseudonym SS-88. The Sergeant testified that in his experience, SS-88 is a common symbol in neo-Nazi culture. SS is a reference to the Schutztaffel Police force in Europe during the Nazi occupation, and 88 is a numerical code for HH, meaning Heil Hitler. The letter H is the 8th letter of the alphabet. [50] In February of 2004, SS-88 posted on stormfront.org, notice of a meeting of the WCFU that had been planned for Red Deer, Alberta. In that post, SS-88 advised that he had asked the Red Deer RCMP detachment to attend at the event to help keep the peace as there was a concern that members of the Anti-Racist Action Group (ARA) might attend the meeting and cause a disturbance. Sergeant Camp later confirmed with the Red Deer detachment that its officers had a discussion about this WCFU meeting in February of 2004 with a person identifying himself as Glenn Bahr. [51] Shortly after the meeting in Red Deer had been scheduled to take place, SS-88 made another posting to Stormfront.org. The posting was titled, Western Canada For Us (WCFU) / Posters of me in Red Deer. In the posting SS-88 describes that a poster about him had been circulated in Red Deer by the ARA. SS-88 described the poster in detail and noted that a photograph of him was attached to the poster. Sergeant Camp contacted the complainant, Richard Warman, and asked whether he could obtain a copy of this poster and the attached photograph. The Sergeant received copies from Mr. Warman, which copies were entered as evidence during the hearing. The poster had a very similar layout to that described in the posting made by SS-88, and had almost identical content. The photograph attached to the poster was of the respondent, Glenn Bahr. [52] On March 1, 2004, SS-88 posted on stormfront.org a posting titled Happy Birthday Paul Fromm. The posting reads: Happy birthday Paul!! You sure don’t look 56, I would have guessed 30! Glenn [53] In January of 2004, SS-88 made a posting to a stormfront.org discussion forum titled Tattoos: I have an SS on my right pec, Blizkrieg across the top of my back. I have an iron cross with skull on my right arm and an eagle with a Maple Leaf in its wing on my left arm. [54] On May 7, 2004, Sergeant Camp executed a search warrant at the respondent, Mr. Bahr’s home in relation to the Criminal Code charge laid against Mr. Bahr and described earlier. The Sergeant testified that while executing the search warrant, he asked Mr. Bahr to describe his tattoos. Mr. Bahr described that he had an SS symbol on his chest, the word Blizkrieg across his back, an eagle with a Canadian Flag and a skull with flames. [55] The Sergeant testified that during the execution of this search warrant, Mr. Bahr admitted that he was in charge of the WCFU website and undertook to shut the website down. The next day, being May 8, 2004, SS-88 posted to stormfront.org: There will be no meet. WCFU is now disbanded. Later that same day SS-88 posted to stormfront.org: Due to certain circumstances WCFU as an organization and website are finished permanently. On May 8, 2004 the WCFU website was removed from the Internet. [56] The complainant alleges that Glenn Bahr began to use the pseudonym Glenn on the WCFU in or about March of 2004. The evidence in support of this allegation follows. [57] In March of 2004 SS-88 posted to stormfront.org that he will shortly post pictures taken of a rally held in Edmonton, Alberta, in support of Ernst Zundel on the WCFU website. Shortly thereafter, Glenn posted the pictures of a rally in support of Ernst Zundel on the WCFU website. Pictures of another rally in support of Ernst Zundel held in Toronto were also posted on the WCFU website by Glenn. [58] In March of 2004, Glenn posted on the WCFU website: Next Sunday I’ll be doing a radio interview with Peter Warren at 12 noon Alberta time on CKNW Corus Radio Network. A recording of an interview conducted during that show was introduced into evidence. The recording indicated that the interview guest was an individual named Glenn Bahr. The interview included a call-in segment. Listeners were invited to call in and ask questions or direct comments to Mr. Bahr. One caller suggested that Mr. Bahr was at the time using the pseudonym SS-88 on the WCFU website. Glenn Bahr responded, My name is Glenn on the WCFU website. [59] Sergeant Camp testified that the Edmonton Police Service Technological Crimes Section was instructed to complete a forensic analysis of Mr. Bahr’s two computers. The Sergeant testified that he was advised that the person accessing one of these computers as Administrator also accessed the web based e-mail accounts of SS-88@hotmail.com and glennbahr@yahoo.ca. The person who accessed as the website as Administrator also accessed the administrative pages of the WCFU website forum as Glenn, and accessed the stormfront.org and other websites as users schadenfrog andSS-88. The Sergeant was further advised that the person accessing the second computer as Administrator also accessed the e-mail accounts of SS-88@hotmail.com and glennbahr@yahoo.ca; accessed the administrative pages of the WCFU website forum as SS-88 and the stormfront.org website as SS-88. [60] On the basis of this evidence, I find that the complainant and the Commission have made out a prima facie case that the person accessing the WCFU website as SS-88 and Glenn was the respondent, Glenn Bahr and that the person accessing the stormfront.org website as SS-88, was also this respondent. [61] The evidentiary burden lies with the complainant and the Commission to establish their case on a balance of probabilities. Where, however, a prima facie case has been made out in respect of an allegation, a respondent must provide a reasonable explanation, either that the conduct alleged did not occur or that the conduct did not constitute a discriminatory practice. (Warman v. Kulbashian (supra) at para. 114). [62] Mr. Bahr did not lead any evidence that would suggest that he did not use these pseudonyms. I find that the person accessing the WCFU and stormfront.org websites as SS-88 was the respondent, Glenn Bahr and further that Mr. Bahr was the person accessing the WCFU website as Glenn. (ii) Did Glenn Bahr have control over the WCFU website? [63] The complainant and the Commission allege that the respondent, Glenn Bahr, either alone or with others, had control of the WCFU website. In particular, they allege Glenn Bahr had control over the administration of the website and was able to control the content of the site. The evidence led to support this allegation is as follows. [64] Sergeant Camp testified that he reviewed a posting on stormfront.org dated December of 2003 made by SS-88 which read as follows: If you need a website done to promote your plan, I can offer you my services free of charge. Just e-mail me. [65] The Sergeant testified there was much discussion in early March of 2004 on the stormfront.org Canada discussion forum about the WCFU, and a website that was being created. The discussion included comments and suggestions about content for the site, and also included suggested changes to proposed content. As will be seen, these postings demonstrate clearly that SS-88, being the respondent, Glenn Bahr, took an active role in the creation of the website. A selection of the postings made to the stormfront.org website is as follows: On March 3, 2004, SS-88 posted: I made some suggested changes to the site, and later that day, SS-88 posted: Thanx man for the help with proofreading the site. I will try and get that copy up tonight after work. Appreciate it! March 4, 2004, SS-88 posted: . . . I will program in the pics and add the content, and later that day, SS-88 posted: Thanx everyone but I have it under control. These things don’t happen overnight. I’m working on the site and it will be up soon. Be patient theres a lot involved in a big site. On March 8, 2004, SS-88 posted: Our website is now active. I’m still adding content etc but please come stop by and take part. The posting has a link to www.wcfu.com, the WCFU website. [66] I find that the complainant and the Commission have made out a prima facie case that the respondent, Glenn Bahr, played a significant role in the creation of the WCFU website. The complainant and the Commission also allege that Mr. Bahr continued to have significant control over the website after its launch. The evidence led to support this allegation is as follows. [67] On the WCFU website, first SS-88, and later Glenn is identified as the head administrator. Further, SS-88, and then Glenn contributed material to the site on a regular basis. The material posted by SS-88 and Glenn included photographs of protest rallies, postings of newspaper articles on different subjects, and postings on the discussion forum. [68] Sergeant Camp testified that the EPS forensic analysis on the first computer seized during the execution of the search warrant disclosed that the person accessing the WCFU website as Glenn had administrative rights on the website and so was able to add, delete and modify the content of the site and to control its layout. This person also had administrative powers over the discussion forum and could control the content of postings by banning the use of certain words and could delete postings from the forum. The person also controlled the manner by which members were authenticated and could ban members from posting to the forum. The forensic analysis of the second computer disclosed that the person accessing the website as SS-88 had these same administrative rights. [69] During the radio interview discussed earlier, Glenn Bahr, in response to a question from a caller, acknowledged that he had banned some members from the discussion forum where he considered their participation to be problematic. Mr. Bahr was able to ensure that these banned members could not gain access to the discussion forum. [70] As mentioned earlier, Sergeant Camp testified that while he was executing the search warrant at Glenn Bahr’s home in May of 2004, Mr. Bahr admitted that he controlled the website. He also undertook to shut the site down. The next day the WCFU website disappeared from the Internet. [71] On the basis of this evidence, I find that the complainant and the Commission have made out a prima facie case that the respondent, Glenn Bahr, was instrumental in creating the WCFU website, and that he had control of the website from its inception until the time the website was taken from the Internet. As no evidence was tendered by the respondent that would tend to counter this evidence, I find that Mr. Bahr controlled, himself, or in concert with others, the WCFU website. (iii) Did Glenn Bahr communicate, or cause to be communicated, the material available for download on the WCFU website? [72] While Mr. Bahr did not author the material contained on the Downloads portion of the website, s. 13(1) does not require authorship; just communication of the offending material. (See Warman v. Kyburz [2003] CHRT 18). I have found that Mr. Bahr had administrative control over the WCFU website, and I find for that reason that he, either alone or in concert with others, installed the material contained in the Downloads section, and that he did accordingly communicate or cause to be communicated that material. (iv) Did Glenn Bahr communicate the impugned postings as alleged? [73] The Complainant alleges that the respondent, Glenn Bahr made two postings to the WCFU website discussion forum: The Treaty Song, posted on March 18, 2004 and a posting contributed to a discussion thread titled Homosexuals made on March 10, 2004. Both of these postings were made by SS-88. I have found that SS-88 was Glenn Bahr’s pseudonym on the WCFU website, and it is reasonable to conclude that, in the result, Mr. Bahr made the impugned postings. I find that a prima facie case has been made out that the respondent, Glenn Bahr made the impugned postings. [74] As mentioned earlier, the respondent, Glenn Bahr did not give evidence at the hearing. Through his representative however, Mr. Bahr denied making the postings, alleging that a third party gained unauthorized access to his WCFU website pseudonym and made the impugned postings. The evidence led by this respondent in support of this allegation is as follows. [75] An affidavit sworn by Kent Dahl, a Constable with the RCMP detachment in Red Deer, was filed in evidence. This affidavit states that Mr. Bahr attended at the detachment and filed a complaint on March 19, 2004. The Constable describes that Mr. Bahr reported receiving threatening e-mails and telephone calls. Mr. Bahr also reported that a poster had been distributed in Red Deer alleging that he was a white supremacist, causing him to lose his job and his apartment. The Constable deposes that Glenn Bahr was unwilling to allow the RCMP access to his computer for their investigation, and that he did not deliver to the RCMP copies of the e-mails he complained about. Constable Dahl deposed that as a result, the RCMP was unable to pursue this complaint. It is further deposed by the Constable that Mr. Bahr advised him in April of 2004 that he had moved to Edmonton and no longer wished to pursue the matter. [76] A transcript was prepared from an audio tape made of the interview Glenn Bahr gave to Constable Dahl at the time he made his complaint. The transcript confirms that the focus of Mr. Bahr’s complaint was the distribution of the posters and the threatening phone calls and e-mails. [77] The transcript also discloses that in addition to the matters deposed to by Constable Dahl, Glenn Bahr reported that he was receiving what he described as fake e-mails. He described, for example, that he had received e-mails apparently written by a person known to him. He learned later that the e-mails were not written by the person known to him - they had been sent by a third party who had obtained unauthorized access to the e-mail account of his acquaintance. Mr. Bahr advised that he suspected a member or members of either or both of the ARA or the Communist party were involved. Mr. Bahr also reported that persons were breaking in to his MSN instant messaging account, and that of some of his acquaintances and were impersonating him and his friends during chat sessions. [78] Mr. Bahr did not report to the Constable that anyone had impersonated him in relation to postings made to discussion forums in general or to the WCFU website in particular. The mischief he complains about is limited to his receipt of fake e-mails and interference with MSN instant messaging accounts. None of the impugned material consist of e-mail messages or instant messages. [79] Mr. Bernard Klatt gave testimony on Mr. Bahr’s behalf after being qualified as an expert on computer technology and the Internet. Mr. Klatt testified that it is possible for persons to take control of, or hack into the computer of another and described various methods that could be employed by the unscrupulous to take such control. For the most part, these methods required a hacker to trick a person to disclose his or her computer password. Documents describing different hacking methods used over the internet were entered as evidence in the hearing. [80] Mr. Klatt’s evidence was that control of one’s computer could be assumed by another. Mr. Klatt did not give evidence that would tend to demonstrate that Mr. Bahr’s computer was in fact hacked, or that would tend to demonstrate that Mr. Bahr was the victim of any other unauthorized conduct. Mr. Klatt did not testify that an unauthorized user was impersonating Mr. Bahr on the WCFU discussion forum. [81] Does this evidence serve as a reasonable explanation of the evidence of the complainant and the Commission? Member Hadjis describes in Warman v. Kulbashian that where a prima facie case is made out, the Respondent must provide a reasonable explanation and further that the explanation must entail more than hints and innuendo. [82] I find that the evidence tendered by the Respondent does not constitute a reasonable explanation and does not tend to demonstrate that the conduct did not occur. Mr. Bahr did not, in his complaint to the Red Deer RCMP, complain that some person was impersonating him on the WCFU website discussion forum, making postings that were not his composition. His complaint of mischief regarding his computer were limited to the receipt of fake e-mails and that his MSN instant messaging account was hacked into. Further, Mr. Klatt’s evidence was only that it is possible for a person to gain unauthorized access to the computer of another. He did not testify that any person did in fact gain such access to Mr. Bahr’s computer at any time relevant to this complaint. This evidence is insufficient to displace the prima facie case made out by the complainant and the Respondent. I find on all of the evidence that the respondent, Mr. Bahr, made the postings as alleged by the complainant and the Commission. F. Did the Respondent, WCFU communicate, or cause to be communicated, the impugned material? (i) Preliminary Issue: Is the Respondent, WCFU, a group of persons for the purpose of s. 13(1)? [83] The respondent, WCFU, did not appear at the hearing. In earlier written submissions however, WCFU argued that it was not a person or a group of persons for the purpose of s. 13(1) and is accordingly not a proper party to this complaint. WCFU will be a group of persons for the purpose of s. 13(1) if there is, on the evidence, adequate indicia that it constitutes a group of people who have organized themselves under that name, regardless of whether the group has a formal legal status (see Canadian Human Rights Commission v. Western Guard Party and John Ross Taylor, (July 20, 1979) (Can. Trib.; Leddy, Lederman and Volpini) [unreported] at p. 41, see also Nealy v. Johnston (1989), 10 C.H.R.R. D/6450 at para. 45641. [84] I find that WCFU was a group of persons within the meaning of s. 13 of the CHRA, capable of engaging in the discriminatory conduct alleged herein. In reaching this conclusion one need not go much further than the following posting made to the WCFU website in May of 2004, by Glenn, who I have found to be the respondent, Glenn Bahr: The Alberta Chapter of WCFU is the head chapter of Western Canada For Us. This is where all of the decisions are made. They have representatives in Edmonton, Three Hills and Calgary. WCFU distributes most of the material and organizes most of our protests. WCFU Alberta holds monthly meetings where we discuss provincial and national issues and see what we can do to help out our fellow Euro-Canadians. The posting ends: Glenn Bahr, Alberta Chapter and WCFU President, Albertachapter@WCFU.com and solicits donations by mail to Ste. 306, 10654 Whyte Ave., Edmonton, AB. [85] From this posting to the WCFU website it is clear that this group has an organizational structure, it has Chapters, at least three representatives and a President. The group distributes material, holds regular meetings, organizes events, has a post office box, created a website and has articulated a mission of helping fellow Euro-Canadians. [86] Further, Sergeant Camp testified that in March of 2004, the Old Strathcona Community Police Station in Edmonton, Alberta called the Hate Crimes Unit and reported that they had received complaints that business cards had been distributed in the community. The business card was obtained by the Sergeant and was introduced into evidence. The card read: Glenn Bahr, Alberta Chapter and WCFU President, Alberta, Canada and contained two Internet addresses: www.wcfu.com and albertachapter@wcfu.com. This latter address also accessed the WCFU website. [87] Sergeant Camp also testified that he was contacted by the Leduc, Alberta RCMP detachment in early May of 2004. Officers from that detachment had received complaints about persons distributing pamphlets in the area. The officers forwarded the pamphlet to Sergeant Camp who introduced it as evidence at the hearing. The pamphlet had photographs of two Caucasian children and was entitled For their sakes. The bottom of the pamphlet had the name of and postal address for Western Canada For Us. The pamphlet also identified the website addresses of www.wcfu.com and albertachapter@wcfu.com. [88] The evidence also demonstrates that Glenn Bahr was the leader and founder of WCFU. In addition to the evidence described above, there is the radio interview described earlier. At the commencement of this interview, Glenn Bahr is introduced by the host as the president and founder of the Western Canada For Us group and as the head of the Alberta Chapter of the organization. Further, on April 27, 2004 Glenn posted a copy of a letter to the editor submitted to the Winnipeg Sun. The letter challenges an article published in that newspaper describing that a Manitoba chapter of the WCFU, described as a white supremacist group, was attempting to establish itself in Winnipeg. The letter is signed Glenn Bahr, President and Founder, WCFU Alberta Chapter. (ii) Did WCFU communicate the impugned material? [89] The respondent, WCFU, created and controlled a website. WCFU, by installing the website and its content, communicated or caused to be communicated that content, including the impugned material (see Warman v. Kulbashian [2006] CHRT 11). [90] In finding that WCFU communicated or caused to be communicated the impugned material, I am mindful of s. 13(3) of the CHRA which states that: . . . no owner or operator of a telecommunication undertaking communicates or causes to be communicated any matter described in subsection (1) by reason only that the facilities of a telecommunication undertaking owned or operated by that person are used by other persons for the transmission of that matter. [91] The purpose of this section is to absolve from liability persons who merely provide facilities for others to use. Such a person would not then be liable for the manner in which that facility was used. By installing the discussion forum on its website, the WCFU provided a facility designed to be used by whomever might wish to commence or contribute to a discussion. Some persons used this facility in a manner I have found to be likely to expose persons identifiable on the basis of a prohibited ground of discrimination to hatred or contempt. Should WCFU be found to be responsible for the comments posted to the discussion forum? Is s. 13(3) applicable to and does it afford a defence to WCFU in respect of that content? I find that the section does not apply on the facts of this case and does not afford a defence to WCFU. [92] Member Hadjis of this Tribunal noted that this section affords a defence to persons whose involvement is limited to ownership or operation of facilities in relation to messages communicated by reason only that the facilities were used. On the facts of that case the Member found that a respondent could not avail itself of s. 13(3) where its participation in the facility was not benign in its character. The member found that the respondent in that case provided web hosting services, but also that the respondent actively encouraged the communication of hate messages over its server. The member concluded that the respondent’s participation with the facility was not benign in its nature and so could not avail itself of the defence provided in s. 13(1) (Warman v. Kulbashian [2006] CHRT 11 at para 119). [93] I agree with Member Hadjis’ analysis and find in this case that the WCFU website was similarly not benign in its character. When viewed in its entirety, the site is clearly designed to provoke discussion that is likely to be hateful in nature. There are links to neo-Nazi and white supremacist sites, Nazi memorabilia and literature including the three works discussed in this decision. The website was designed to attract visitors who share the views expressed in this and other content of the website or who might be convinced to adopt such views. Hateful messages are a likely, if not inevitable, result of the manner in which this website is designed. Thus WCFU’ conduct as an owner or operator of telecommunication facilities used by others was not benign and accordingly the defence contained in s. 13(3) has no application. I find that the WCFU communicated or caused to be communicated the impugned postings made to the discussion forum. IV. Remedies [94] The Commission and the complainant request that the Tribunal issue several orders pursuant to s. 54(1) of the CHRA. A. An order that the discriminatory practice cease (s. 54(1)(a)) [95] Section 54(1)(a) empowers the Tribunal to order a respondent to cease the discriminatory practice, and take measures, in consultation with the Commission on the general purposes of the measures, to redress the practice or prevent it from occurring in the future. [96] Accordingly, I order the respondents, Glenn Bahr and Western Canada For Us, to cease and desist from communicating or causing to be communicated, by the means described in s. 13 of the CHRA, namely the Internet, any material of the type found in this decision to be likely to expose a person or persons to hatred or contempt by reason of the fact that the person or persons are identifiable on the basis of a prohibited ground of discrimination. B. Penalty [97] The Tribunal may order a respondent who engaged in a discriminatory practice as set out in s. 13, to pay a penalty of up to $10,000.00 pursuant to s. 54(1)(c). The purpose of this section is not to compensate an individual complainant, but rather to reflect society’s opprobrium for the respondent’s conduct (Schnell, supra., at para 163 and see Warman v. Kyburz [2003], CHRT 18 at para. 94). Section 54 (1.1) spells out several factors that the Tribunal must take into account when deciding whether to make such an order: - the nature, circumstances, extent and gravity of the discriminatory practice; - the wilfulness or intent of the respondent, any prior discriminatory practices, and the respondent’s ability to pay the penalty. [98] While Mr. Bahr did not author the material found on the Downloads section of the website, I have found that he caused this material to be communicated. I have also found that Mr. Bahr made the Treaty Song posting and the first of the two postings made to the discussion forum thread titled Homosexuals. I find that the material was communicated wilfully by this Respondent. [99] Insofar as the nature, circumstances, extent and gravity of the discriminatory practices are concerned, I have found that Mr. Bahr repeatedly communicated or caused to be communicated, messages regarding Jewish people, homosexuals, the mentally disabled, blacks and other non-whites that were vicious and extreme in their characterization. The materials communicated expressed hatred and contempt in respect of members of these various groups and invited others to hold these persons in hatred and contempt. Some of the material considered in these reasons advocates for the extermination of Jewish people, homosexuals and persons suffering mental disabilities. This weighs heavily in favour of the assessment of a significant penalty. [100] No evidence was led to suggest that the respondent, Mr. Bahr, had engaged in any prior discriminatory practices. I understand that the charges laid against Mr. Bahr under s. 319(2) of the Criminal Code arose from the same or substantially the same material as was considered in this proceeding, and not to prior separate discriminatory conduct. [101] That the website was shut down by Mr. Bahr almost immediately after Sergeant Camp executed a search warrant at his apartment is a mitigating factor. [102] I heard no direct evidence of the details of Mr. Bahr’s financial circumstances. I note however, that s. 50(3) of the CHRA authorizes the Tribunal to accept whatever evidence and other information that it sees fit, whether or not that evidence would be admissible in a court of law (see Warman v. Kyburz (supra) at para 98; Warman v. Kulbashian (supra) at para 149). Mr. Bahr, through his representative, made it clear that the costs of the hearing were onerous on this respondent. I find that Mr. Bahr is an individual of modest means and that his ability to pay is restricted. [103] While the seriousness of the section 13 breach would otherwise call for a fine at or near the maximum permissible under the legislation, being $10,000.00, these factors have persuaded the Tribunal that a somewhat reduced penalty is appropriate. I order Mr. Bahr to pay a penalty in the amount of $5,000.00. Payment of the penalty shall be made by certified cheque or money order payable to the Receiver General for Canada, and must be received by the Tribunal within 120 days of Mr. Bahr’s being notified of this decision. [104] With regard to the respondent, Western Canada For Us, I find, for reasons set out above, that the nature, circumstances, extent and gravity of the discriminatory practices as well as the wilfulness of WCFU’s conduct, weigh heavily in favour of the assessment of a significant penalty. As did the respondent, Glenn Bahr, WCFU communicated repeatedly material that was vicious and extreme. [105] I have no evidence of any prior discriminatory practices engaged in by WCFU. I note, however, that this group appears to have been established in or about March of 2004, shortly before the website was established. It is the content of the website that is the subject matter of this complaint. I find that this group did not engage in prior discriminatory practices. [106] I heard no evidence of this respondent’s ability to pay, though I note that the evidence suggests that WCFU has now been disbanded. [107] In all of the circumstances, I order that WCFU pay a penalty in the amount of $5,000.00. Payment of the penalty shall be made by certified cheque or money order payable to the Receiver General for Canada. [108] While this respondent did not appear at the hearing, I have found that Glenn Bahr was the founder and leader of the organization. I therefore order that the penalty must be received by the Tribunal within 120 days of the date when Mr. Bahr receives this decision. Signed by Julie Lloyd Tribunal Member Ottawa, Ontario December 1, 2006 Canadian Human Rights Tribunal Parties of Record Tribunal Files: T1087/6805 et T1088/6905 Style of Cause: Richard Warman v. Glenn Bahr and Western Canada for Us Decision of the Tribunal Dated: December 1, 2006 Date and Place of Hearing: May 23 - 26, 2006 May 29 – June 1, 2006Edmonton, Alberta Appearances: Richard Warman, for himself Giacomo Vigna and Ikram Warsame, for the Canadian Human Rights Commission Paul Fromm, for the Respondent Glenn Bahr No one appearing, for the Respondent Western Canada For Us

2006 CHRT 53

CHRT

Warman v. Lemire

en

2006-11-29

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6765/index.do

2023-12-01

Warman v. Lemire Collection Canadian Human Rights Tribunal Date 2006-11-29 Neutral citation 2006 CHRT 53 File number(s) T1073/5405 Decision-maker(s) Hadjis, Athanasios Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE RICHARD WARMAN Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - MARC LEMIRE Respondent - and - ATTORNEY GENERAL OF CANADA CANADIAN ASSOCIATION FOR FREE EXPRESSION CANADIAN FREE SPEECH LEAGUE CANADIAN JEWISH CONGRESS FRIENDS OF SIMON WIESENTHAL CENTER FOR HOLOCAUST STUDIES LEAGUE FOR HUMAN RIGHTS OF B'NAI BRITH Interested Parties RULING 2006 CHRT 53 2006/11/29 MEMBER: Athanasios D. Hadjis [1] The Canadian Human Rights Commission has made a motion containing essentially two requests for additional disclosure of documents and material that are allegedly in Mr. Lemire's possession. The First Request [2] The first disclosure request is set out as follows: All information within the possession of Marc Lemire without exception of entire contents of his website which he administers, as well as all the literature (books) referred to on this website and the entire website including all additions (such as information regarding the Commission's announced expert) to it since September 24, 1999 and up to date on the date of the hearing (sic throughout). [3] This paragraph can be broken down into two sections: (i) The ...entire contents of [Mr. Lemire's] website which he administers... from September 24, 1999 ... to ... the date of the hearing. [4] According to Mr. Warman's complaint, the matter that is alleged to be in violation of s. 13 of the Canadian Human Rights Act is found on the website known as freedomsite.org, which includes the website's message board chat.freedomsite.org. The complaint alleges that Mr. Lemire is the registered owner of the website. The content of this website therefore clearly relates to a fact or issue in this case, within the meaning of Rule 6 (1)(d) of the Tribunal's Rules of Procedure. Consequently, any documents that relate to this content, which are within Mr. Lemire's possession, are subject to disclosure, pursuant to this Rule. I take the term documents to include any text or other information stored or recorded in electronic format. [5] The complaint also states that the dates of the alleged discriminatory practices are 24 September 1999 and ongoing. Evidence relating to the ongoing nature of alleged violations of the Act that post-date a complaint can be considered by a Tribunal inquiring into the complaint (Warman v. Kouba, 2006 CHRT 50 at paras. 17-19). [6] Mr. Lemire is therefore ordered to disclose to the Commission and Mr. Warman, by December 15, 2006, any content of the above-noted website of which Mr. Lemire is still in possession, for the period commencing on September 24, 1999, and onwards. [7] The Commission indicated in its submissions that it is willing to receive all of this material in electronic format, on CD-ROM, thereby sparing Mr. Lemire from the necessity of making physical or hard copies of the material. Mr. Lemire may disclose the material in this manner if he so chooses. [8] In his own submissions, Mr. Lemire contends that the Commission already downloaded at least some of the website's content, in January 2004, and that the Commission did not disclose this downloaded material to him. He asks that a CD-ROM copy of this downloaded material be produced. In my view, this material relates to the issues and facts of this case and if it exists and is still in the Commission's possession, it must be disclosed to Mr. Lemire, by December 7, 2006. Thereafter, Mr. Lemire will only be required to disclose any of the website content that is not already present on this CD-ROM. (ii) ...all the literature (books) referred to on this website.... [9] With respect to this request, the Commission is seeking disclosure of advertised literature sold on [the] website. The Commission contends that references on websites to external literature may indirectly expose a person or persons to hatred or contempt, within the meaning of s. 13 of the Act. This argument does not strike me as implausible. Much will depend, it would seem, on the specific circumstances of the case. The material is therefore arguably relevant to an issue in the case and consequently is subject to disclosure. [10] That said, there is nothing in the schedule attached to the Commission's submissions to indicate that any such external literature was in fact being sold on the website. Rather, it appears to be a list of titles of articles or books. All of the titles are underlined, which when visiting websites often means that by clicking the underlined word or phrase, one can be redirected to a new web page. This raises the possibility that some or all of the literature's content is available, through these links, on the website itself. Pursuant to the preceding disclosure order in this ruling, that material will be disclosed. [11] If, however, any of this literature is not available on the website itself, and Mr. Lemire is in possession of this material, he must disclose it to the Commission and the Complainant. The Commission recognizes, in its submissions, that making copies of this material could prove to be a very onerous and costly task for Mr. Lemire. The Commission therefore suggests that Mr. Lemire simply be required to make these documents available for viewing. This is a reasonable option. Mr. Lemire is therefore required to provide the material to his counsel, Ms. Kulaska, who will in turn make the documents available for viewing by the Commission and Mr. Warman. The parties are expected to cooperate with each other in this regard in order to ensure that this disclosure is completed by December 31, 2006. The Second Request [12] The second disclosure request is set out as follows: All materials, transcripts, statements, speeches from other hearings or from elsewhere that the Respondent has in his possession. [13] This disclosure request is not granted. As I mentioned in a previous decision regarding disclosure in this case (Warman v. Lemire, 2006 CHRT 32, at paras. 40-42), requests such as this, which are over-reaching and lacking in specificity, will be denied. [14] It appears from the Commission's submissions that its intent, in making this request, was to ensure that Mr. Lemire discloses all information and material related to all the issues and facts of this case. However, Rule 6 of the Tribunal's Rules of Procedure already requires this level of disclosure from all parties. A specific order against one of the parties simply reiterating this requirement is therefore unnecessary. Signed by Athanasios D. Hadjis OTTAWA, Ontario November 29, 2006 PARTIES OF RECORD TRIBUNAL FILE: T1073/5405 STYLE OF CAUSE: Richard Warman v. Marc Lemire RULING OF THE TRIBUNAL DATED: November 29, 2006 APPEARANCES: Richard Warman For himself Giacomo Vigna / Ikram Warsame For the Canadian Human Rights Commission Barbara Kulaska For the Respondent

2006 CHRT 54

CHRT

Montreuil v. Canadian Forces

en

2006-10-30

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6760/index.do

2023-12-01

Montreuil v. Canadian Forces Collection Canadian Human Rights Tribunal Date 2006-10-30 Neutral citation 2006 CHRT 54 File number(s) T1047/2805 Decision-maker(s) Deschamps, Pierre Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE MICHELINE MONTREUIL Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADIAN FORCES Respondent RULING MEMBER: Pierre Deschamps 2006 CHRT 54 2006/10/30 [TRANSLATION] I. POSITION OF THE PARTIES A. Position of the Canadian Armed Forces B. Position of the complainant C. Position of the Canadian Human Rights Commission II. ANALYSIS (i) Expert report by Dr. Côté (ii) Certificate of Dr. Rodrigue III. DECISION [1] The Tribunal is seized with a complaint in which it is alleged that the complainant, Micheline Montreuil, was discriminated against by the respondent, the Canadian Armed Forces, because of her sex and a perception of disability when they refused to allow her to enlist in the Forces in 1999. [2] On October 6, 2006, the Canadian Armed Forces presented a motion for the complainant to disclose two documents, the expert report by Dr. Serge Côté, dated March 18, 1999, and the disability certificate by Dr. Jean Rodrigue, dated January 5, 1998. [3] The complainant objected to the disclosure of these documents, claiming they were not relevant and were subject to confidentiality. [4] This motion was first referred to Karen Jensen for adjudication. In a decision rendered October 16, 2006, the latter referred the motion back to the member assigned to hear the complaint. [5] During the hearing of this motion, the Tribunal heard two witnesses, Dr. Pierre Assalian and the complainant, Micheline Montreuil. I. POSITION OF THE PARTIES A. Position of the Canadian Armed Forces [6] In its request for disclosure, the respondent is requiring the Tribunal to order that the complainant disclose the information regarding her medical condition that had not been sent in support of the complainant's enlistment application of July 13, 1999, and not disclosed to the Canadian Human Rights Commission, the Canadian Forces, and the Tribunal in the present proceedings. These documents consist of the medical expert report by Dr. Serge Côté, psychiatrist, dated March 18, 1998, and the disability report by Dr. Jean Rodrigue, dated January 5, 1998. [7] The Tribunal notes that no obligation is made under the disclosure rules to submit any particular documents to the Tribunal. Disclosure takes place between the parties to a complaint without the Tribunal being a party. [8] In its request, the respondent claims that the complainant wrongly did not disclose these two reports that, it claims, relate to the complainant's medical condition. It claims that the complainant did not respect the meaning and scope of the Tribunal's order, rendered November 28, 2005. We will get back to this. [9] The respondent claims that the medical information in the two documents described above have to do with the claimant's sex-change procedure and allow for the claimant's state of health to be assessed. [10] In its written arguments, the respondent claims that the medical documents in question are essential to understanding the complainant's complete medical history. B. Position of the complainant [11] In her written response to the respondent's request, the complainant states that the documents the respondent is seeking to have disclosed are not relevant to the case, that they are part of a labour relations file, and that they are subject to confidentiality. [12] Moreover, the complainant states that the medical expertise of Dr. Côté does not fall into the category of documents mentioned by my colleague, Karen Jensen, in her November 28, 2005, ruling. C. Position of the Canadian Human Rights Commission [13] The Commission's position can be found in a letter addressed to the Tribunal on October 12, 2006. [14] The Commission supports the complainant's position regarding her refusal to disclose the two documents described above because they are not relevant to the issues in question in this complaint. The Commission argues that the medical reports were prepared strictly for a grievance filed by the complainant against her former employer and affect only the validity of the consent the complainant gave regarding her resignation from Collège Garneau, on December 4, 1997. For the Commission, the request for disclosure of these documents is a fishing expedition. [15] Moreover, the Commission states that the documents being requested cannot be used to support the Canadian Armed Forces decision to deny the complainant's enlistment application. II. ANALYSIS [16] At the outset, it is important to state that it is not the complainant's general medical condition that is at issue in this case, but her medical condition concerning her identity as a transgender or transsexual person. This was clearly established in the decision rendered by my colleague Jensen on November 28, 2005; a decision that, we must remember, addressed the medical information regarding the complainant held by Dr. Serge Côté. [17] In her decision, my colleague Jensen defined the parameters for the disclosure of the medical documents related to this case. According to her, and I quote, ...only those medical files dealing with Ms. Montreuil's involvement in the sex-change process and her sexual identity are to be disclosed. Therefore, it is not the medical documents concerning the complainant's general medical state that are relevant in this case, but those concerning the sex-change and sexual identity of the complainant. [18] We will now look at the two documents for which the respondent is requesting disclosure. (i) Expert report by Dr. Côté [19] It must be mentioned here that the expert report by Dr. Côté has already been the subject of a request for disclosure in this case. In fact, the file and the evidence show that in September 2005, the respondent filed a motion for disclosure pertaining to three documents, i.e. the medical files of Dr. Serge Côté, Dr. Roland Tremblay and Dr. Martine Lehoux. At the time, the complainant objected to the disclosure of these files on the ground that they were not relevant to the allegation of discrimination the complainant made against the Canadian Armed Forces. [20] In her decision dated November 28, 2005, my colleague Jensen found, as we stated above, that only the medical files regarding Ms. Montreuil's sex-change and sexual identity were to be disclosed. She ordered, that the complete medical files of Micheline Montreuil (or Pierre Montreuil, as she was previously known)...from the following physicians be disclosed: Dr. Serge Côté, Dr. Roland Tremblay and Dr. Martine Lehoux. The decision by my colleague Jensen was made without her personally consulting the documents in question. [21] Moreover, Ms. Jensen stated in her decision that to protect Ms. Montreuil's right to confidentiality, the documents were to be transmitted to counsel for the Canadian Armed Forces and not to any other person without the Tribunal first giving consent and Ms. Montreuil being notified. She also indicated that the documents could be consulted by medical experts hired by the Canadian Forces, but only for the purposes of the present case and were not to be used for any purpose that was not related to the present case. [22] At the hearing of this motion, the parties reminded the Tribunal that it should not stray from Ms. Jensen's decision, which provided the guidelines for the debate over the medical documents that were to be disclosed by the complainant. [23] Today, the evidence shows that Ms. Montreuil did not consult Dr. Côté in the context of a sex-change process, but as an expert to assess whether her decision to resign, in the context of a grievance Ms. Montreuil filed following her resignation from Collège Garneau on December 4, 1997, was a free and informed choice. [24] The evidence shows that the complainant did not consult Dr. Côté as an attending physician, but as an expert. This being said, regarding the order he received to communicate the complete medical file he had on the complainant to counsel for the Canadian Armed Forces, Dr. Côté informed then-counsel for the Canadian Armed Forces, Claude Morissette, on two occasions, that he no longer had possession of the expert report concerning the grievance filed by the complainant in 1998, because he did not keep files for more than five years. However, the evidence shows that the expert report, while no longer in Dr. Côté's possession, is in the possession of the complainant and third parties identified by the complainant at the hearing. [25] It must be noted that had it not been for Dr. Côté's practice to not keep his medical expertise files for more than five years, Dr. Côté, upon the Tribunal's order, would have communicated his March 1998 expert report to the respondent. [26] This being said, it is important, in light of the new facts revealed by the evidence, to determine whether this expert report by Dr. Côté meets the requirements for likelihood of relevance that governs the disclosure of documents in cases of complaints of discrimination based on the Canadian Human Rights Act. [27] At the outset, it is important to note that we are not at a stage in these proceedings where the Tribunal is to assess the probative value of the document in terms of the allegation of discrimination made by the complainant, but the appearance or likelihood of the document's relevance in terms of the issues at bar. [28] The disclosure of the expert report to the respondent does not necessarily mean the document will be produced. If the respondent planned to file the document as evidence, the Tribunal would need to determine both its admissibility and its probative value, in terms of the allegation of discrimination submitted by the complainant. [29] There is no doubt that the complainant's condition as a transgender or transsexual person is an issue in question regarding the claim of discrimination, as is the issue of her sexual identity. [30] Therefore, insomuch as a document relates to these two elements, transgender or transsexual condition or sexual identity, the document acquires a likelihood of relevance. [31] It must be noted that part of the content of Dr. Côté's expert report, for which the respondent seeks disclosure, is known. In the excerpt of the arbitral sentence submitted in support of Dr. Assalian's affidavit, are the findings that appear in Dr. Serge Côté's report. The findings report on the fact that, for the first time in her life, the complainant was confronted by her double identity. [32] Moreover, in the motion for judicial review of the arbitral sentence, there are many paragraphs on the testimony given by Dr. Côté before the arbitrator who rendered the arbitral sentence. [33] Thus, at paragraph 137, the applicant, the teacher's union of Collège François-Xavier Garneau, claims that the arbitrator reported only a small part of the testimony given by Dr. Côté, the author of the expert report. In particular, at paragraph 137.3, the applicant stated that Dr. Côté, in his testimony, claimed that the complainant suffered from duality, anxiety and anguish. [34] At paragraph 137.7, the applicant alleges that the respondent, the Collège, neglected to mention that Dr. Côté stated that the internal conflict of the complainant's personality between Pierre and Micheline meant that the complainant was unable to analyze all the aspects. [35] It seems that Dr. Côté addressed the issue of the complainant's dual personality and her internal personality conflict during his testimony regarding his expert report. The Tribunal is of the view that these are two other elements that are relevant to the case opposing the complainant and the respondent. [36] It is also important to note that it is not at this point in the proceedings that the Tribunal is to rule on the validity of the parties' opposing claims or on the admissibility or probative value of the expert report; the Tribunal must determine whether the expert report has a likelihood of relevance to the issues the Tribunal will be deciding. [37] The Tribunal therefore finds that the expert report by Dr. Serge Côté of March 18, 1998, must be disclosed to the respondent. [38] Before the Tribunal, the complainant argued that the report was confidential because it was medical in nature and was produced under the terms of an agreement that was also confidential. [39] As for the confidentiality of the report, the Tribunal intends on using the same disclosure conditions that appear in Karen Jensen's decision of November 28, 2005. [40] It must be stated here that the content of Dr. Côté's report has already been disclosed in a number of proceedings. The findings at which Dr. Côté arrived are even reproduced in the arbitral sentence. [41] That being said, given the special circumstances of this case, this is not a reason to no longer ensure the protection of the disclosed information regarding third parties that would have no reason to read the report. (ii) Certificate of Dr. Rodrigue [42] Now, regarding the certificate of Dr. Rodrigue in this case, the respondent claims that the document is relevant because it relates to the complainant's sex-change process and her sexual identity. [43] During her testimony, the complainant clearly stated the circumstances and the reasons for which the disability certificate was written by Dr. Rodrigue; reasons essentially related to the collective agreement that required such a document to be produced. [44] In his sentence, the arbitrator Morin, who read the disability certificate completed by Dr. Rodrigue, declared that he could not rely on this document as evidence of a genuine disability. His opinion was that the certificate, produced one month after the events, appeared to conform too closely to the calendar negotiated by the parties for the agreement reached between the complainant, her union, and the Collège. [45] At paragraph 6 of his affidavit, Dr. Assalian states having read an excerpt from the arbitral sentence dated February 4, 2000, regarding the complainant, her union and the Collège Garneau. At the hearing, Dr. Assalian admitted to not having read the decision and the arbitrator's reasons, as they appeared at Tab 4 of Exhibit RP-18 at pages 9 et seq. [46] In the Tribunal's opinion, these pages are important for deciding on the relevance of the disability certificate written by Dr. Rodrigue in the present motion. It is unfortunate that Dr. Assalian did not read them. [47] Upon analysis of the documents submitted, the Tribunal feels that there is no indication that the disability report written by Dr. Rodrigue contains any information whatsoever on the complainant's transgender or transsexual condition, her sex-change procedure or even on her sexual identity. [48] It is difficult to maintain that the excerpt from the arbitral sentence produced in support of Dr. Assalian's affidavit contains any element that relates to the complainant's transgender or transsexual condition. [49] The fact that the document was written by a general practitioner a few months before the complainant's application to enlist in the Canadian Armed Forces is not enough to establish a likelihood of relevance for the issues in question in the present case. [50] Hence, the Tribunal does not grant the respondent's application to order the complainant to disclose the disability certificate written by Dr. Rodrigue. III. DECISION [51] As a result, the Tribunal orders the complainant to disclose forthwith the expert report of Dr. Serge Côté dated March 18, 1988, to the respondent party. [52] To protect the complainant's right to confidentiality, the expert report of Dr. Serge Côté shall be transmitted to counsel for the respondent. The report may be transmitted to medical experts hired by the respondent, solely for the purposes of the present case. Pierre Deschamps QUÉBEC, Quebec October 30, 2006 PARTIES OF RECORD TRIBUNAL FILE: T1047/2805 STYLE OF CAUSE: Micheline Montreuil v. Canadian Forces DATE AND PLACE OF HEARING: October 23 to 27, 2006 October 30 to November 2, 2006 Québec, Quebec RULING OF THE TRIBUNAL RENDERED ON THE BENCH DATED: October 30, 2006 APPEARANCES: Micheline Montreuil For herself Ikram Warsame For the Canadian Human Rights Commission Guy Lamb / Pauline Lacroix For the Respondent

2006 CHRT 55

CHRT

Montreuil v. Canadian Forces

en

2006-11-02

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6761/index.do

2023-12-01

Montreuil v. Canadian Forces Collection Canadian Human Rights Tribunal Date 2006-11-02 Neutral citation 2006 CHRT 55 File number(s) T1047/2805 Decision-maker(s) Deschamps, Pierre Decision type Ruling Decision status Interim Grounds Disability Sex Decision Content Between: Micheline Montreuil Complainant - and - Canadian Human Rights Commission Commission - and - Canadian Forces Respondent Ruling Member: Pierre Deschamps Date: November 2, 2006 Citation: 2006 CHRT 55 [1] The respondent is requesting that simultaneous interpretation services be available during the testimony of some of its witnesses, namely Dr. Wilchesky, Dr. Karmel, Dr. Boddam, Dr. Newnham, Dr. Watson and Colonel Fletcher, since they are more comfortable testifying in English than in French. [2] Moreover, the respondent requests that the simultaneous interpretation services be made available during the testimony of Dr. Beltrami to facilitate the understanding of one of its experts, Dr. Karmel, who will eventually be called to testify in regard to Dr. Beltrami's testimony. [3] The Tribunal grants respondent's motion for simultaneous interpretation services to be available during the testimony of Dr. Wilchesky, Dr. Karmel, Dr. Boddam, Dr. Newnham, Dr. Watson and Colonel Fletcher. [4] The Tribunal also grants respondent's application that simultaneous interpretation services be available during the testimony of Dr. Beltrami, considering the testimony of Dr. Karmel as an expert will deal with the report produced by Dr. Beltrami and his testimony and it is important for Dr. Karmel to understand all the nuances of Dr. Beltrami's potential testimony, so as to be able to advise the Tribunal in the best manner possible on one of the questions in issue. Signed by Pierre Deschamps Tribunal Member Ottawa, Ontario November 2, 2006 Canadian Human Rights Tribunal Parties of Record Tribunal File: T1047/2805 Style of Cause: Micheline Montreuil v. Canadian Forces Ruling of the Tribunal Dated: November 2, 2006 (Rendered from the bench) Date and Place of Hearing: October 23 to 27, 2006 October 30 to November 2, 2006Quebec, Quebec Appearances: Micheline Montreuil, for herself Ikram Warsame, for the Canadian Human Rights Commission Guy Lamb and Pauline Leroux, for the Respondent

2006 CHRT 56

CHRT

Montreuil v. Canadian Forces

en

2006-11-02

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6758/index.do

2023-12-01

Montreuil v. Canadian Forces Collection Canadian Human Rights Tribunal Date 2006-11-02 Neutral citation 2006 CHRT 56 File number(s) T1047/2805 Decision-maker(s) Deschamps, Pierre Decision type Ruling Decision Content MICHELINE MONTREUIL Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADIAN FORCES Respondent RULING MEMBER: Pierre Deschamps 2006 CHRT 56 2006/11/02 [TRANSLATION] [1] This is a motion by the Canadian Human Rights Commission to exclude the respondent's expert witnesses during the testimony of their expert colleagues and the Commission's expert, Dr. Beltrami. [2] The Commission claims that their presence during the testimony of the Commission's expert and the respondent's experts would color their testimony, since they could be influenced in their subsequent testimony, leading to prejudice in their cross-examination by the complainant and the Commission. [3] In support of its claim, the Commission refers to various legal decisions on the exclusion of ordinary witnesses. None of the decisions it submitted deal with the exclusion of expert witnesses. [4] For the Commission, there is no reason to make this distinction; the only relevant one is that between a witness that is a party and one that is not. [5] The Commission notes that one of the expert reports that the respondent will produce was co-signed by three of the experts the respondent plans on calling to testify. It claims that if the respondent's witnesses are present during the cross-examination of one of the others, it will be prejudicial to its cross-examination. [6] The complainant agrees with the Commission's position regarding the exclusion of the respondent's expert witnesses. [7] The respondent objects to the exclusion of its expert witnesses during the hearing. [8] Among the decisions cited by the respondent in support of its position, is the decision by the Court of Appeal of Québec, Montpetit v. Léger [1999] J.Q. No. 1216. In this case, the trial judge had ordered the exclusion of the defendant's expert witnesses during the cross-examination of one of them by counsel for the applicant. [9] In its decision, the Court of Appeal was to make a very clear distinction between ordinary witnesses and expert witnesses, stating the opinion that, following the case law, excluding ordinary witnesses was the rule while excluding expert witnesses, even partially, was the exception that could only be legally justified in exceptional circumstances. [10] The Tribunal is of the view that the mere fact that the respondent's experts co-signed the joint report does not create exceptional circumstances that justify waiving the rule that expert witnesses can be present during a hearing. [11] As the Court of Appeal of Québec stated in Montpetit v. Léger, it is possible that the complainant and the Commission may suffer prejudice because of the presence of these experts during the cross-examination of one of them. However, as the Court of Appeal stated, [translation] the trial judge will be able to draw any adverse conclusions regarding their credibility, if applicable. [12] Hence, the Tribunal dismisses the Commission's motion. The respondent's expert witnesses may be present during all of the testimony by the complainant and the Commission's expert, as well as during the testimony of their expert colleagues when they are called as witnesses. The Commission's expert may also be present during the testimony of the complainant, as well as during the testimony of the respondent's expert witnesses. Pierre Deschamps QUÉBEC, Quebec November 2, 2006 PARTIES OF RECORD TRIBUNAL FILE: T1047/2805 STYLE OF CAUSE: Micheline Montreuil v. Canadian Forces DATE AND PLACE OF HEARING: October 23 to 27, 2006 October 30 to November 2, 2006 RULING OF THE TRIBUNAL RENDERED FROM THE BENCH DATED: November 2, 2006 APPEARANCES: Micheline Montreuil For herself Ikram Warsame For the Canadian Human Rights Commission Guy Lamb / Pauline Leroux For the Respondent

2006 CHRT 57

CHRT

Montreuil v. Canadian Forces

en

2006-12-01

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6759/index.do

2023-12-01

Montreuil v. Canadian Forces Collection Canadian Human Rights Tribunal Date 2006-12-01 Neutral citation 2006 CHRT 57 File number(s) T1047/2805 Decision-maker(s) Deschamps, Pierre Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE MICHELINE MONTREUIL Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADIAN FORCES Respondent RULING 2006 CHRT 57 2006/12/01 MEMBER: Pierre Deschamps [TRANSLATION I. POSITION OF THE PARTIES A. The complainant B. The Canadian Human Rights Commission C. The respondent II. ANALYSIS A. Documents found on an Internet site B. Medical literature III. CONCLUSION IV. ORDER [1] On October 11, 2006, the Human Rights Commission, hereinafter called the Commission, and the complainant received a series of six volumes of documents for a total of more than 1,500 pages from the Canadian Armed Forces, hereinafter, the respondent. [2] On October 13, 2006, the complainant and the Commission presented the Tribunal with a motion to adjourn the hearing that was to begin October 23, 2006, claiming the late disclosure of the documents described above. [3] My colleague, Karen Jensen, was first presented with the motion. In a decision rendered October 16, 2006, she referred the motion back to the member assigned to hear the complaint on merits. [4] On October 23, 2006, the date set for the hearing on the merits, the Tribunal heard the motion to adjourn as well as many other motions and requests by the parties. [5] The first nine days of the hearing on the merits were devoted to hearing the various motions and requests made by the parties. [6] The hearing was finally adjourned on November 2, 2006, to December 4, 2006, when the complainant was to present its evidence. This decision summarizes the reasons on which the Tribunal based its decision to adjourn the hearing to December 4, 2006. I. POSITION OF THE PARTIES A. The complainant [7] The complainant claims that many of the documents that were transmitted to her on October 11, 2006, are new, in that they were never brought to her attention during the disclosure of evidence process. [8] The complainant also claims that this is the first time she is seeing at least 95% of the volume on the Canadian Forces recruiting standards and the volume on the Canadian Armed Forces medical standards. The same goes for the scientific literature on transsexualism and the interpretation of MMPI-2 psychometric tests. [9] The complainant claims that by transmitting voluminous documentation that she is seeing for the first time at this stage in the proceedings, the respondent did not meet its ongoing obligation to disclose all documents relevant to the issues in question. According to the complainant, this documentation should have been transmitted before February 7, 2006. In short, the complainant claims that the disclosure of these documents is late. B. The Canadian Human Rights Commission [10] The Commission agrees with the complainant's position. For the Commission, this is a case of a massive, very late disclosure of documents. For the Commission, this massive, very late disclosure of documents the respondent plans on using as evidence causes a serious prejudice to the complainant and the Commission, that must read the documents in order to adequately prepare for the hearing. [11] The Commission claims it is false to claim, as counsel for the respondent did, that by transmitting six volumes of documentation on October 11, 2006, the respondent was only conforming to the Tribunal's order of September 18 and 22, 2006, and states that such a claim does not make sense. It claims that the Tribunal would not have authorized the disclosure of new documents one week and two days before the start of the hearing. C. The respondent [12] The respondent claims that the disclosure respects the February 7, 2006, order by Karen Jensen on all points, and that is was only conforming to the Tribunal's order dated September 18 and 21, 2006. It also claims that the disclosure was validly authorized by the Tribunal. [13] Counsel for the respondent feels that the documents submitted on October 11, 2006, do not constitute a late filing, and should not have taken the Commission and the complainant by surprise. [14] As for the documents on the recruitment and medical standards of the Canadian Armed Forces, the respondent points out that these documents are available on its Internet site. As for the medical literature, the respondent claims that the Commission's expert should have been aware of it. [15] At the hearing, counsel for the respondent stated that the documents transmitted to the complainant and the Commission on October 11, 2006 replaced the documents previously disclosed and were, in fact, the documentary basis to be used in support of its evidence. II. ANALYSIS [16] At the hearing of this motion, the Tribunal was able to examine the documents transmitted by the respondent to the Commission and the complainant on October 11, 2006. The documentation, distributed in six spiral notebooks, is, in fact, more than 1,500 pages. Many of the documents transmitted had not previously been disclosed. [17] In a given case, the disclosure to the opposing party of documents that are relevant to the issue in question that a party has in its possession and the production by a party of documentation it plans on submitting in support of its evidence are two very different things. [18] Disclosure refers to any document a party has in its possession that it feels is relevant to prove its case. The documents produced at the hearing by a party to prove its case are, in most cases, a selection of relevant documents from the documents already disclosed. [19] In this case, it cannot be claimed that the Tribunal authorized the disclosure of new documents less than 10 days before the start of the hearing. The reading of the transcript of the stenographer's notes regarding the hearings of September 18 and 21, 2006 does not allow for such a conclusion to be reached. [20] This being said, in a particular case, not only should a party not be taken by surprise, but that party must also be allowed to prepare adequately. This applies particularly to expert witnesses who are to inform the Tribunal of technical aspects that are beyond its field of legal knowledge. [21] Transmitting a significant volume of documents that had not previously been disclosed to a party a few days before the start of a hearing is a cause of prejudice to the party to whom the documents were transmitted; it could prevent the party from preparing adequately and prevent its expert witnesses from preparing adequately. [22] Among the documents transmitted to the complainant and the Commission on October 11, 2006, two series of documents warrant particular attention: the documents that can be found on the respondent's Internet site and the scientific literature produced. A. Documents found on an Internet site [23] The fact that documents are available and accessible on a party's Internet site, in this case, the respondent, should not be interpreted as implicit disclosure of their content to the opposing party. [24] It is the responsibility of the party that has documents on its Internet site to not only inform the opposing party of the documents it considers relevant to the issues in question but also to send it copies. [25] The volume of documents available today on so many Internet sites is such that it is not possible to have a party find out which documents on the Internet site of another party may be relevant to the issues in question in a particular case. This task is the responsibility of the party that has such a site. B. Medical literature [26] In a given case, it is important for an expert to have prior access to the relevant scientific documentation to which a party plans on referring, in order to properly inform the Tribunal of technical or scientific issues. To assume that an expert should be aware of all this documentation does not seem reasonable. [27] Therefore, the fact that medical literature is now available on the Internet does not exempt a party, that considers certain scientific articles relevant to the issues in question and plans on using them in support of its evidence, from disclosing these articles to the opposing party as soon as possible. [28] In this case, there seems to have been confusion or a misconception by the respondent between the disclosure of relevant documents relate to the case and the production of documents it intends to tender in evidence. This should not be prejudicial to the complainant and the Commission. [29] At the hearing on the motion, the complainant stated many times that she needs some time to read all the documentation transmitted by the respondent on October 11, 2006. The Tribunal set the date of November 24 for the filing of the reply by the complainant and the Commission to the respondent's statement of particulars. [30] In this case, the Tribunal considers that the complainant and the Commission had six weeks to examine the documentation submitted by the respondent. Of course, during this period, nine days were devoted to the hearing of various motions and requests. [31] This being said, as of November 2, 2006, the complainant and the Commission had a little more than three weeks to examine the documentation submitted by the respondent on October 11, 2006, and present a reply, which, given the circumstances in this case, would constitute a deadline that could not be considered a miscarriage of justice. III. CONCLUSION [32] The Tribunal finds that the request for an adjournment by the complainant and the Commission was, in this case, fully justified, considering the scope and importance of the new documents sent to them on October 11, 2006. [33] Starting the hearing of witnesses on October 23, 2006, would, in this case, have caused serious prejudice to both the complainant and the Commission. They should have a sufficient period of time to examine the new documents that were sent to them by the respondent on October 11, 2006, and to prepare accordingly. IV. ORDER [34] For the above-mentioned reasons, the Tribunal allows in part the motion for adjournment presented by the complainant and the Commission, and orders the following: The hearing of witnesses in this case is differed to December 4, 2006, when the complainant will begin its evidence; The respondent shall send the complainant and the Commission any additions to its expert reports on or before November 10, 2006; The Commission shall send the complainant and the respondent any additions to Dr. Beltrami's report on or before November 21, 2006, as well as all related documentation; The Commission shall send the respondent and the complainant the result of the MMPI-2 test in Dr. Beltrami's possession on or by November 21, 2006, including the graph and responses to the questions; The complainant and the Commission shall send the respondent their reply to the respondent's statement of particulars on or before November 24, 2006, as well as all related documentation. Pierre Deschamps OTTAWA, Ontario December 1, 2006 PARTIES OF RECORD TRIBUNAL FILE: T1047/2805 STYLE OF CAUSE: Micheline Montreuil v. Canadian Forces DATE AND PLACE OF HEARING: October 23 to 27, 2006 October 30 to November 2, 2006 RULING OF THE TRIBUNAL DATED: December 1, 2006 APPEARANCES: Micheline Montreuil For herself Ikram Warsame For the Canadian Human Rights Commission Guy Lamb / Pauline Leroux For the Respondent

2006 CHRT 58

CHRT

Warman v. Marc Lemire

en

2006-12-06

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6762/index.do

2023-12-01

Warman v. Marc Lemire Collection Canadian Human Rights Tribunal Date 2006-12-06 Neutral citation 2006 CHRT 58 File number(s) T1073/5405 Decision-maker(s) Hadjis, Athanasios Decision type Ruling Decision status Interim Grounds Colour National or Ethnic Origin Race Religion Sexual Orientation Decision Content Between: Richard Warman Complainant - and - Canadian Human Rights Commission Commission - and – Marc Lemire Respondent - and - Attorney General of Canada Canadian Association for Free Expression Canadian Free Speech League Canadian Jewish Congress Friends of Simon Wiesenthal Center for Holocaust Studies League for Human Rights of B’nai Brith Interested parties Ruling Member: Athanasios D. Hadjis Date: December 6, 2006 Citation: 2006 CHRT 58 [1] Mr. Lemire has made a motion seeking the dismissal of the complaint. He alleges that the Statements of Particulars of the Canadian Human Rights Commission and Mr. Warman do not set out material facts sufficient to allow him to give full answer and defence. [2] This is not my first decision regarding particulars in this case. On August 16, 2006, I issued a ruling ordering Mr. Warman and the Commission to identify the specific messages that they allege constitute hate messages, within the meaning of s. 13 of the Act (Warman v. Lemire, 2006 CHRT 32). I noted, at paragraph 26 of the decision, that if the Commission and Mr. Warman take the position that each message found on each of the freedomsite.org website’s pages constitutes a hate message, then they should indicate so explicitly. [3] Pursuant to this ruling, the Commission sent a letter to Mr. Lemire’s legal counsel, on October 2, 2006, stating its position to the effect that all of the messages contained in the Freedom site disclosed to [Mr. Lemire] in paper copy and also on C-Rom [sic] version constitute hate messages contrary to s. 13 of the Act. The Commission added that while it will be arguing at the hearing that some postings on the website may be more explicit than others in constituting violations of s. 13, given that the website has only one common theme, the Commission will be asking the Tribunal for an order that the entire website be closed. The Commission added that it would therefore be relying on the evidence of the entire website’s contents in order to enable the Tribunal to fully and completely assess the very nature of the website in its entirety, not just certain aspects of it. [4] Similarly, on October 2, 2006, Mr. Warman sent a letter detailing the evidence upon which he intended to rely, namely the entirety of the Freedomsite message board; all other examples identified in [Mr. Warman’s] complaint; the entirety of the contents of jrbooksonline; and Mr. Lemire’s posting of the Canadian Immigrant Poem to Stormfront. [5] Mr. Lemire claims that the details provided in the Commission’s and Mr. Warman’s responses are insufficient and are not in compliance with my previous ruling. According to Mr. Lemire, these circumstances render it impossible for him to mount a defence as he does not know the case against him so that he may defend against it. [6] I disagree. The Commission and Mr. Warman have now explicitly stated that in their opinion, the entire freedomsite.org website constitutes matter that is in violation of s. 13 of the Act. Prior to this particularization, the Commission and Mr. Warman had simply produced 133 pages of messages as part of their documentary disclosure, without specifying which of those messages they allege constitute hate messages under the Act. The Commission and Mr. Warman have now specified that they consider each of these messages to be in violation of s. 13. These are just their allegations. It is incumbent upon them to prove these allegations at the hearing. [7] Mr. Lemire seems to argue in his motion that all of the messages do not constitute hate messages under the Act, and that there is no justification for the issuance of a Tribunal order shutting down the website. The appropriate time for these arguments to be raised, however, is in final submissions. These arguments have no bearing on the issue of particulars. [8] Mr. Warman makes reference in his October 2nd letter to jrbooksonline and an alleged posting by Mr. Lemire on another website. Mr. Warman notes that this material was previously disclosed. Mr. Lemire claims that, as of the date of his motion, the Commission and Mr. Warman had not provided him with copies of the entire freedomsite.org website (its message board, in particular), nor of jrbooksonline, as part of their disclosure. Mr. Lemire argues that given the intention of Mr. Warman and the Commission to rely on evidence from the entire freedomsite.org and jrbooksonline websites, this omission constitutes a breach of the Commission’s and Mr. Warman’s duty to disclose. More importantly, it impairs Mr. Lemire’s ability to mount a defence to the allegations made against him. [9] According to Rule 6 of the Tribunal’s Rules of Procedure, a party is only required to disclose documents in the party’s possession that relate to a fact, issue or form of relief identified by any of the parties to the case. This duty to disclose does not preclude a party from alleging facts and issues which are supported by evidence adduced from documents in the possession of another party. Indeed, it is not uncommon in human rights cases for discriminatory practices to be established from evidence that was in the possession of the respondent and disclosed as part of the Tribunal’s disclosure process (see for e.g. Montreuil v. National Bank of Canada, (2004), 48 C.H.R.R. 436 (C.H.R.T.)). [10] In the present case, if a website in question, such as freedomsite.org, is indeed owned by Mr. Lemire, as alleged by Mr. Warman, it strikes me as somewhat disingenuous for Mr. Lemire to argue that the Commission’s failure to provide him copies of its content would constitute unfair treatment. It would seem to me that Mr. Lemire would be the person who is best placed to have knowledge of the website’s content. [11] In any event, Rule 9 of the Tribunal’s Rules of Procedure is available to address any question that may arise if a party tries to enter into evidence a document that was not previously disclosed. [12] Finally, I note that in his submissions, Mr. Lemire indicates that the jrbooksonline material consists of literally tens of thousands of pages. This, I suspect, is a reference to the literature that I ordered Mr. Lemire to allow the Commission and Mr. Warman to view in my most recent ruling, Warman v. Lemire, 2006 CHRT 53. To forestall the possibility of anyone being taken by surprise, I order the Commission and Mr. Warman to inform Mr. Lemire which portions of this literature they intend to specifically draw the Tribunal’s attention to at the hearing. This notice must be provided to Mr. Lemire within one week following the viewing of the literature, as ordered in paragraph 11 of that decision. [13] For all the above reasons, Mr. Lemire’s motion to dismiss is denied. Signed by Athanasios D. Hadjis Tribunal Member Ottawa, Ontario December 6, 2006 Canadian Human Rights Tribunal Parties of Record Tribunal File: T1073/5405 Style of Cause: Richard Warman v. Marc Lemire Ruling of the Tribunal Dated: December 6, 2006 Appearances: Richard Warman, for himself Giacomo Vigna, for the Canadian Human Rights Commission Barbara Kulaszka, for the Respondent

2006 CHRT 6

CHRT

Culic v. Canada Post Corporation

en

2006-02-16

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6479/index.do

2023-12-01

Culic v. Canada Post Corporation Collection Canadian Human Rights Tribunal Date 2006-02-16 Neutral citation 2006 CHRT 6 File number(s) T1083/6405 Decision-maker(s) Jensen, Karen A. Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE SANDY CULIC Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADA POST CORPORATION Respondent RULING 2006 CHRT 06 2006/02/16 MEMBER: Karen A. Jensen I. ISSUE II. ANALYSIS A. Issue Estoppel: The Test (i) Same Questions in Both Proceedings III. CONCLUSION IV. ORDER [1] Ms. Sandy Lipp (née Culic, hereinafter referred to as Ms. Lipp) began her employment with Canada Post in 1990 as a temporary employee. In 1993, she became a part-time postal clerk in Regina, Saskatchewan. From 1994 or 1995 on, Ms. Lipp experienced health problems that necessitated workplace accommodation. [2] Then, in 2001, Ms. Lipp was diagnosed with major depression and an anxiety disorder that was, to some extent, related to conflicts with her supervisor at Canada Post. She was off work for a number of months. During that time, Ms. Lipp became pregnant. [3] In the Fall of 2001, Ms. Lipp attempted to return to work, but was told by Canada Post that more medical information was needed before she could return. The Corporation was apparently concerned that Ms. Lipp had not sufficiently recovered from her depression and anxiety disorder to allow her to return to work. It was suspected that Ms. Lipp might be willing to disregard her psychological problems in order to log in the required number of hours to qualify for Employment Insurance during her maternity leave. [4] The Corporation was not satisfied with the information provided by Ms. Lipp's physician attesting to her fitness to return to work. Therefore, in November of 2001, Canada Post arranged for Ms. Lipp to attend a two-day independent medical examination (IME) with physicians in Winnipeg. Ms. Lipp indicated that she could not travel to Winnipeg for a number of reasons including difficulties with her pregnancy and a great fear of traveling. [5] Canada Post was prepared to fly Ms. Lipp to Winnipeg, to pay for a bus trip, or to rent a car and pay for Ms. Lipp and her boyfriend to attend the IME. However, Canada Post was not prepared to lift the requirement that she attend the IME in Winnipeg and warned Ms. Lipp that if she did not attend she would be placed on disciplinary leave without pay. [6] Ms. Lipp did not attend the IME on November 22 and 23, 2001. Consequently, she was placed on disciplinary leave without pay until such time as Canada Post received the results of an IME concerning her fitness to return to work. [7] Through her union, Ms. Lipp filed grievances on November 7 and December 19, 2001 asserting that Canada Post had violated the collective agreement by engaging in an unreasonable delay in returning her to the workplace and in putting her on disciplinary leave without pay. [8] On April 16, 2004, an arbitrator dismissed Ms. Lipp's grievances. The arbitrator held that Canada Post was justified in requiring Ms. Lipp to attend the IME in order to determine her fitness to return to work. Therefore, the arbitrator rejected the assertion that there had been unreasonable delay in returning her to work. With respect to the second grievance, the arbitrator held that given Ms. Lipp's defiant stance regarding the IME, the imposition of disciplinary leave without pay was justified. [9] On March 18, 2003, Ms. Lipp filed a complaint with the Canadian Human Rights Commission in which she alleged discrimination on the basis of sex (pregnancy) and disability (shoulder and neck injuries, fibromyalgia). The allegedly discriminatory conduct includes Canada Post's refusal to return Ms. Lipp to her former position in October 2001, the requirement that she attend an IME in Winnipeg, the way that the meeting with the Plant Manager was handled, the disciplinary action taken against her when she refused to attend the IME in Winnipeg, and other aspects of Canada Post's treatment of Ms. Lipp from October 2001 and ongoing. [10] The complaint was referred to the Tribunal on September 28, 2005. Canada Post subsequently brought a motion requesting that the complaint be dismissed on the basis of the doctrine of res judicata. I. ISSUE [11] The sole issue to be determined in this case is whether the doctrine of res judicata or abuse of process apply to the present complaint. [12] I find that the doctrine of res judicata does not apply in the circumstances of the present case. It is far from clear that the issues in the complaint have been determined by the arbitrator. For this reason also, it would not be an abuse of process for the Tribunal to hear the complaint. Therefore, this is not a case where it would be appropriate to dismiss the complaint on the basis of either doctrine. II. ANALYSIS Res Judicata [13] The doctrine of res judicata is a legal tool used to bring finality and closure to litigation. It is a means of ensuring that once a final decision has been rendered, the same issues between the same parties are not relitigated in another forum. (Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460) [14] However, caution and restraint must be used in the application of the doctrine of res judicata to the adjudication of human rights complaints, since the dismissal of a complaint results in a denial of the opportunity to be heard (Cremasco v. Canada Post Corporation 2002/09/30 - Ruling No. 1, at para. 83, aff'd 2004 FCA 363, and Buffet v. Canada (Canadian Armed Forces) 2005 CHRT 16 at para. 40). For this reason, it has been said that a complaint should only be dismissed on the basis of res judicata in the very clearest of circumstances (Cremasco, supra, at para. 106). [15] There are two principal branches of the doctrine. The first branch is known as issue estoppel. Issue estoppel applies where there are common issues in the two proceedings. Depending on the nature of the issue in respect of which the estoppel is being raised, issue estoppel may bar relitigation of only a discrete issue or it may bar the second action in its entirety (Hough v. Brunswick Centres Inc., (1997) 9 C.P.C. (4th) 111 (Ont. Gen. Div.) at paras. 24 and 25). [16] The second branch of res judicata is known as cause of action estoppel. In the present case, the parties have not argued that cause of action estoppel applies. Therefore, I will confine my analysis to the application of issue estoppel. A. Issue Estoppel: The Test [17] The two-part test for the application of the doctrine of issue estoppel is now well-known: (1) the criteria for issue estoppel must be met; and (2) if the criteria are met, the Tribunal must determine, based on certain discretionary factors, whether it is appropriate, in the circumstances, to apply the doctrine (Danyluk, supra, at para. 33). [18] The criteria to be met for the application of issue estoppel are as follows: the same questions are being decided in both proceedings; the judicial decision which is said to create the estoppel is a final decision; and the parties, or their privies, are the same. (i) Same Questions in Both Proceedings [19] For this requirement to be met, the determination of the issue in the first litigation must have been necessary to the result (Minott v. O'Shanter Development Co. (1999), 42 O.R. (3d) 321 (O.C.A.) at para. 23). In other words, issue estoppel covers fundamental issues determined in the first proceeding, issues that were essential to the decision. [20] This aspect of the test requires careful analysis, in my view. While it is not necessary that the adjudicator employ the same methodology and terminology that would be used by the Tribunal, it must be clear that the adjudicator has dealt with the human rights issues in the case (Rasanen v. Rosemount Instruments Ltd. (1994), 112 D.L.R. (4th) 683 at p. 703). Human rights are quasi-constitutional rights. Therefore, it is of the utmost importance that no one be denied the opportunity to ensure that these rights have been respected (Cremasco, supra, at para. 83, and Buffet, supra, at para. 40). [21] In her complaint, Ms. Lipp alleges that Canada Post has discriminated against her on the basis of disability (shoulder and neck injuries as well as fibromyalgia) and sex (pregnancy). Ms. Lipp alleges that the way that Canada Post handled the process of investigating her fitness to return to work was discriminatory; she was treated differently during this process because she was pregnant and/or disabled. [22] In contrast, the two grievances which were the subject of the arbitration proceedings do not specifically allege discrimination. In her grievances, Ms. Lipp was asserting her right, pursuant to the collective agreement, to return to her modified duties once she had established that she was psychologically fit. Thus, the focus of the arbitration proceedings was different from the human rights complaint; Ms. Lipp's fitness to return to work and Canada Post's justification for demanding further proof of her fitness were the issues in the arbitration proceedings. [23] Canada Post argues that even though the arbitrator did not engage in a human rights analysis per se, nor did he mention the words discrimination or accommodation, his essential findings and conclusions are, nonetheless, determinative of the issues in Ms. Lipp's complaint. [24] What were the arbitrator's essential findings? The arbitrator found that Ms. Lipp's request to return to her former duties was probably more motivated by a desire to qualify for Employment Insurance than a true improvement in her psychological health. He held that Canada Post had a right to know whether Ms. Lipp was, in fact, fit to return to her former duties. Given Canada Post's lack of confidence in Ms. Lipp's physicians' reports, the arbitrator held that an IME was justified. [25] The arbitrator held that Canada Post was justified in requiring that Ms. Lipp attend the IME in Winnipeg. He noted that Canada Post's physician was of the view that the only option for an IME was in Winnipeg. He also noted that Canada Post had offered Ms. Lipp a number of travel alternatives. [26] The arbitrator implicitly found that the events which were alleged to be part of the delay were necessary steps in the process of obtaining the information that Canada Post needed. Therefore, he held that Canada Post did not engage in unnecessary delay in returning Ms. Lipp to her former position. [27] With regard to the second grievance, the arbitrator held that Ms. Lipp was warned that if she refused to attend the IME in Winnipeg she would be placed on disciplinary leave without pay. He stated that any vagueness in the letter to Ms. Lipp explaining why an IME was necessary was attributable to requirements designed to protect Ms. Lipp's privacy. Therefore, the arbitrator held that Canada Post was justified in placing Ms. Lipp on disciplinary leave without pay. [28] Are these conclusions and findings determinative of the issues that arise in Ms. Lipp's complaint? In a complaint of this nature, the Tribunal will consider whether Ms. Lipp was treated differently from other employees and whether this different treatment was based, at least in part, on the fact that she was disabled or pregnant or both. To succeed, a complainant need only show that the ground alleged was a factor in the respondent's conduct; it does not need to be the sole or overriding factor: Martin v. Carter Chevrolet Oldsmobile, 2001 BCHRT 37 at para. 21; Cooke v. Vancouver Island Aids Society (1999), 35 C.H.R.R. D/56 at para. 52 (B.C.H.R.T.); and Holden v. Canadian National Railway (1991), 14 C.H.R.R. D/12 at para. 7 (F.C.A.). [29] The Tribunal will then examine whether Canada Post has provided a credible, non-discriminatory explanation for its conduct. The evidence will be looked at as a whole, not as discrete events in isolation of one another. [30] The Tribunal may also be called upon to determine whether a requirement results in adverse effect discrimination or indirect discrimination. If the effect of an apparently non-discriminatory requirement is to impose a heavier burden on an employee or to deprive an employee of a benefit by reason of their disability and/or sex, then unless the requirement is a bona fide occupational requirement, it will be found to be discriminatory. The key factor in determining whether a requirement is a bona fide occupational requirement is whether the employer has accommodated the employee to the point of undue hardship. (See: British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3, at para. 49; and Gosselin v. Quebec (Attorney General) [2002] 4 S.C.R. 429 at para. 120) Employee participation in the accommodation efforts is also an important factor in the Tribunal's analysis. [31] Can it be said that the arbitrator's decision addressed these issues either expressly or by necessary implication? For the following reasons, the answer to this question is no. [32] Firstly, the arbitrator did not examine whether Ms. Lipp was treated differently on the basis of her pregnancy and/or disability. Although he found that Ms. Lipp was probably seeking to return to work because she was pregnant and needed the money, he stopped short of analyzing whether this fact, as well as Ms. Lipp's disabilities, might have influenced the way Canada Post handled the investigation of her return to work and the requirement that she attend an IME in Winnipeg. The arbitrator did not ask whether, looking at the whole process, Ms. Lipp was treated differently than other employees because, at least in part, she was disabled and pregnant. Indeed, the arbitrator was not asked to make a determination on this issue and it was not necessary to do so in order to decide whether Canada Post had engaged in undue delay in returning Ms. Lipp to her former position. [33] Can it be said that the arbitrator's conclusion that Canada Post did not engage in undue delay in returning Ms. Lipp to her former duties constitutes an implicit finding that Canada Post did not discriminate against Ms. Lipp? After all, in drawing this conclusion, the arbitrator explicitly rejected the union's argument that barrier after barrier had been erected to prevent Ms. Lipp's return to work. Is the rejection of this argument an implicit finding that Canada Post did not discriminate against Ms. Lipp? In my view, it is not possible to say this. The arbitrator clearly interpreted the events that occurred as steps in the process of trying to obtain more information about Ms. Lipp's psychological health. In light of that finding, the events were viewed as justifiable. However, this does not necessarily lead to the conclusion that the process or parts of it were not discriminatory. [34] In the human rights context, a complaint may be found to have merit even if discrimination is only one among a number of factors influencing the impugned conduct. Therefore, it is possible to argue that a desire to obtain more information may not have been the only factor influencing Canada Post's conduct toward Ms. Lipp; discrimination may also have played a role. In my view, there must be some indication in the arbitrator's reasons that he addressed this issue and rejected it before it can be said that the issue of discrimination had been conclusively determined. Otherwise, the possibility that discrimination played a role in the treatment of Ms. Lipp is still a live issue for the Tribunal to address during its inquiry into the complaint. [35] Furthermore, while the arbitrator found that Canada Post was justified, on the basis of the provisions of the collective agreement and the arbitral jurisprudence, in requiring further medical information, there is no indication that he considered whether the requirement resulted in indirect discrimination. In that regard, it might be argued that although, on the face of it, the requirement of traveling to Winnipeg for an IME makes sense for the reasons set out by the arbitrator, it is, nonetheless, discriminatory in its effect since it imposed a greater burden on Ms. Lipp than it would on other employees because she was pregnant. It does not appear that the arbitrator considered the possibility of adverse effect discrimination. [36] The next step in the human rights analysis would be to examine whether Canada Post had an obligation to accommodate Ms. Lipp's pregnancy and if so, whether it had done so to the point of undue hardship. There is no indication that the arbitrator examined whether, for example, in requiring that Ms. Lipp attend an IME in Winnipeg, Canada Post was required to accommodate Ms. Lipp's pregnancy. He noted that several travel alternatives had been proposed for attending the IME in Winnipeg and that the plant manager rejected the union's suggestion that the Winnipeg psychiatrist be flown into Regina. However, it is not clear whether these options were proposed as a way of dealing with Ms. Lipp's fear of traveling or her pregnancy-related difficulties. In my view, the arbitrator did not address the issue of accommodation either explicitly or by necessary implication. [37] Finally, Canada Post has argued that the arbitrator's finding that an IME was needed before the accommodation process could be engaged, is exactly the same issue that the Tribunal would face in the adjudication of Ms. Lipp's complaint. Indeed, Canada Post goes so far as to argue that had the arbitrator not found that an IME was warranted, he would have found that Canada Post had failed its obligation to accommodate Ms. Lipp. Therefore, the finding that the IME was justified precludes any analysis that the Tribunal might undertake. [38] I disagree. In her complaint, Ms. Lipp has not alleged that Canada Post failed to accommodate her depression and anxiety disorder. She has alleged discrimination on the basis of sex (pregnancy) and her shoulder, neck and fibromyalgia-related disabilities. As such, the arbitrator's finding that the IME was necessary does not preclude an analysis of whether the alleged discrimination occurred or not. [39] In my view, it is speculative to say that had the arbitrator found that the IME was not necessary, he would have found that Canada Post had failed its obligation to accommodate Ms. Lipp. There is no indication in the arbitrator's reasons, nor does it follow by necessary implication from his conclusions, that he would have made any finding at all with respect to the duty to accommodate Ms. Lipp. In her grievance, Ms. Lipp was asserting that she was fit to return to her modified duties. She was not claiming that she needed accommodation on the basis of her psychological problems. Had the arbitrator found that the IME was not justified, he would presumably have ordered that she be returned to her former duties and compensated for lost wages. I do not think it is possible, based on the arbitrator's analysis, to speculate on any other conclusions that he might have drawn. [40] For these reasons, I think that this is not a case where, although the terminology and methodology may be different, the human rights issues have been covered in some way by the arbitrator. In my view, the arbitrator was not called upon to determine whether Canada Post's conduct toward Ms. Lipp was discriminatory. The question was whether Canada Post had engaged in undue delay and whether the disciplinary action was justifiable. These are different questions from those that the Tribunal would be called upon to consider. Nor can it be said that any of the issues raised in Ms. Lipp's human rights complaint were decided by necessary implication in the arbitration. Therefore, this aspect of the test has not been met. III. CONCLUSION regarding res judicata [41] The doctrine of res judicata will not apply unless all three criteria have been met. Therefore, given my finding that the first criterion has not been met, it is not necessary for me to consider the second and third elements of the test. Moreover, a consideration of the discretionary factors for the application of the doctrine is also unnecessary. A. Abuse of Process [42] Canada Post has also argued that it would be an abuse of process to allow the matter to be heard by this Tribunal since the arbitrator has conclusively determined the very issues that would be dealt with by the Tribunal. Canada Post states that Ms. Lipp is seeking to have the Tribunal reach a different conclusion from the one reached by the arbritrator and this is clearly an abuse of process. [43] However, for the reasons that I have provided above, a hearing before this Tribunal would not constitute a rehearing of the same issues that were determined by the arbritator. Therefore, I find that it would not be an abuse of process for the Tribunal to hear this complaint. IV. ORDER [44] For all of the foregoing reasons, Canada Post's motion is dismissed. Signed by Karen A. Jensen OTTAWA, Ontario February 16, 2006 PARTIES OF RECORD TRIBUNAL FILE: T1083/6405 STYLE OF CAUSE: Sandy Culic v. Canada Post Corporation RULING OF THE TRIBUNAL DATED: February 16, 2006 APPEARANCES: Sandy Lipp (Culic) On her own behalf Daniel Pagowski For the Canadian Human Rights Commission Zygmunt Machelak For the Respondent

2006 CHRT 7

CHRT

Warman v. Lemire

en

2006-02-22

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6472/index.do

2023-12-01

Warman v. Lemire Collection Canadian Human Rights Tribunal Date 2006-02-22 Neutral citation 2006 CHRT 7 File number(s) T1073/5405 Decision-maker(s) Hadjis, Athanasios Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE RICHARD WARMAN Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - MARC LEMIRE Respondent - and - ATTORNEY GENERAL OF CANADA Interested Party RULING 2006 CHRT 7 2006/02/22 MEMBER: Athanasios Hadjis [1] I have had the opportunity to review the parties' submissions on the issue of venue for the hearing into this complaint. [2] It is alleged in the complaint that Marc Lemire communicated hate messages through an Internet website called freedomsite.org, in violation of s. 13 of the Canadian Human Rights Act. The Complainant, Richard Warman, claims to have viewed the website on a computer in Ottawa, where he resides. Mr. Lemire lives somewhere in or near Oakville, Ontario, in the Greater Toronto Area (GTA). His exact address was not disclosed by his legal counsel in her submissions. The freedomsite.org website has a postal address that is located in Toronto. [3] Thus, Mr. Lemire, a resident of the GTA, is alleged to have operated a website, which was also based in Toronto, through which hate messages were communicated. The nature of the Internet is such that the material could have been viewed from Ottawa or just about any other spot on the globe. In my view, however, the place most closely linked to the alleged discriminatory conduct is the GTA. [4] Mr. Warman suggested conducting the hearing at some point midway between Ottawa and Toronto, such as Kingston. I fail to see the logic in this proposal. At a distance of several hours from both Ottawa and Toronto, such a location would not be convenient to anyone and has no rational connection to the place where the alleged discrimination took place. [5] I find that the most appropriate venue for this case is Toronto. Mr. Warman submits that if the hearing is to be held in Toronto, he would prefer that the location chosen be situated in the downtown area. His travel expenses would be reduced since he has personal access to lower accommodation costs, and public transit is more readily available to him. This is a reasonable request in my opinion. [6] Mr. Lemire has expressed a preference for the Oakville/Mississauga/Etobicoke area, at the western end of the GTA. He needs to be able to pick up his child from day care. He also claims that he fears intimidation and harassment from certain groups if the hearing takes place in downtown Toronto. I am certain Mr. Lemire can be accommodated on both fronts. The hearing schedule could be adjusted to allow enough time for him to pick up his child, if needed. The parties can also rest assured that any disturbance or intimidation, inside or outside the hearing room, will not be tolerated by the Tribunal, and appropriate measures will be taken to deal with any problem that may arise. [7] Having considered all of the parties' submissions, I direct that the hearing into this complaint be conducted in central or downtown Toronto. The exact address is to be determined and will be communicated to the parties by the Tribunal at a later time. signed by Athanasios Hadjis OTTAWA, Ontario February 22, 2006 PARTIES OF RECORD TRIBUNAL FILE: T1073/5405 STYLE OF CAUSE: Richard Warman v. Marc Lemire RULING DATED: February 22, 2006 APPEARANCES: Richard Warman On his own behalf Giacomo Vigna / Ikram Warsame On behalf of the Canadian Human Rights Commission Barbara Kulaszka On behalf of the Respondent Simon Foghergill On behalf of the Attorney General of Canada

2006 CHRT 8

CHRT

Warman v. Lemire

en

2006-02-23

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6473/index.do

2023-12-01

Warman v. Lemire Collection Canadian Human Rights Tribunal Date 2006-02-23 Neutral citation 2006 CHRT 8 File number(s) T1073/5405 Decision-maker(s) Hadjis, Athanasios Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE RICHARD WARMAN Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - MARC LEMIRE Respondent - and - ATTORNEY GENERAL OF CANADA Interested Party RULING 2006 CHRT 8 2006/02/23 MEMBER: Athanasios D. Hadjis [1] Several groups have applied to the Tribunal seeking leave to appear as interested parties at the inquiry into this complaint. [2] Richard Warman filed the complaint in November 2003. He alleged that the respondent, Marc Lemire, had communicated hate messages through an Internet website, contrary to s. 13 of the Canadian Human Rights Act. The Canadian Human Rights Commission referred the complaint to the Tribunal for inquiry on August 24, 2005. [3] On October 24, 2005, the Tribunal held a case management meeting by conference call with the parties. Mr. Lemire's counsel, Barbara Kulaszka, indicated during the meeting that she intended to present a preliminary motion regarding the constitutionality of s. 13 of the Act. The Tribunal set down dates for Ms. Kulaszka to file her motion and for the other parties to respond. [4] On November 29, 2005, Paul Fromm, acting for the Canadian Association for Free Expression Inc. (CAFE), sent a letter to the Tribunal seeking leave to obtain standing as an interested party making written and oral submissions in support of [Mr. Lemire's] motion. [5] On December 12 and 19, 2005, Douglas H. Christie communicated in writing with the Tribunal, on behalf of the Canadian Free Speech League (CFSL). He advised that the CFSL was seeking standing in the present case, as an interested party making written and oral submissions on the motion put forth by Marc Lemire regarding the constitutionality of s. 13 [and s. 54] of the Act. [6] On December 13, 2005, Marvin Kurz, solicitor for the League of Human Rights of B'Nai Brith Canada, writing on behalf of counsel for the Canadian Jewish Congress and the Friends of Simon Wiesenthal Center for Holocaust Studies, advised the Tribunal that the three organizations (the B'Nai Brith Group) were seeking interested party status to jointly participate in opposing Mr. Lemire's motion regarding the constitutionality of s. 13 of the Act. [7] On December 19, 2005, the Tribunal directed that Mr. Lemire's motion would be dealt with in the course of the hearing into the complaint, and no longer as a preliminary matter. [8] All three groups seeking interested party status have informed the Tribunal that they still wish to participate in this case, but to varying degrees. CAFE [9] CAFE wishes to participate throughout the course of the hearing. Mr. Fromm indicated that CAFE seeks full participatory rights to make oral and written arguments, to present written evidence, to call [...] and cross-examine witnesses. [10] CAFE states that it is a non-profit organization, which is dedicated to promoting and maximising the guarantees of freedom of speech, freedom of expression, and freedom of assembly, under the Canadian Charter of Rights and Freedoms. Since this proceeding raises important issues regarding these values, CAFE contends that it can bring a unique expertise regarding the effects of the Act's hate message provisions on the Charter. [11] CAFE publishes a regular newsletter that explores threats to free speech, conducts meetings on free speech related issues, and makes representations to legislative bodies on these matters. Mr. Fromm claims that the organization has about 2,000 supporters and subscribers across Canada. The B'Nai Brith Group [12] The members of the B'Nai Brith Group seek to be added as interested parties for the full proceeding, but undertake to limit their participation to the Charter issues. They also undertake to act jointly throughout the proceedings and file one set of submissions. They will coordinate their efforts with Mr. Warman and the Commission to ensure that there is no duplication in the evidence or submissions. [13] Mr. Kurz explains in his application that his clients are three major Canadian Jewish human rights organizations. He claims that they have an extensive history of participation as intervenors in Charter litigation regarding hate propaganda, free speech and the determination of reasonable limits of hate propaganda. [14] As representatives of a group of persons who have a long history of being subject to hatred and vilification, the three organizations making up the B'Nai Brith Group argue that they will bring to bear a unique experience and perspective, which will permit them to make helpful submissions that differ from those of the Commission and Mr. Warman. The CFSL [15] The CFSL wishes to simply argue the constitutional issue regarding s. 13 of the Act. It does not propose to call or cross-examine any witnesses. [16] Mr. Christie claims that the CFSL exists to defend freedom of speech in Canada and to provide counsel and assistance to those who have had their free speech rights assailed by government. He has appeared as general counsel for the CFSL in a number of cases before courts and quasi-judicial tribunals, as an advocate for free speech. In his view, the CFSL's perspective and experience may be of assistance to the Tribunal in considering Mr. Lemire's motion. [17] Incidentally, on February 3, 2006, the Tribunal was informed that the Attorney General of Canada would be exercising the right, pursuant to s. 57 of the Federal Court Act, R.S.C. 1985, c. F-7, to participate and adduce evidence at the hearing, as well as to make submissions, in respect of the constitutional question. Analysis [18] Section 50 of the Act gives the Tribunal wide discretion with respect to the granting of interested party status (Nkwazi v. Canada (Correctional Service), [2000] C.H.R.D. No. 15 at para. 22 (C.H.R.T.) (QL)). The onus is on an applicant to demonstrate how its expertise would be of assistance in the determination of the issues before the Tribunal. Interested party status will not be granted if it does not add significantly to the legal positions of the parties representing a similar viewpoint (Schnell v. Machiavelli and Associates Emprize Inc., [2001] C.H.R.D. No. 14 at para. 6 (C.H.R.T.) (QL). [19] Based on the material and arguments presented, I am satisfied that all of the applicants can add significantly to the legal positions of the parties regarding the constitutionality of s. 13. It is obvious, however, that their interest in this case is limited to the constitutional question. None of the applicants sought to intervene in the case prior to this issue being raised by Ms. Kulaszka as a preliminary matter. The parties to the complaint had been instructed to address the question by written submissions. The Tribunal left the door open to the possibility of receiving oral submissions at a later time, if needed. For as long as it appeared that the question was going to be dealt with as a preliminary matter, the three applicants seemed satisfied to restrict their input to the constitutional issue only. [20] The applicants (the Canadian Association for Free Expression Inc., and the Canadian Free Speech League, as well as the group comprised jointly of the League of Human Rights of B'Nai Brith Canada, the Canadian Jewish Congress, and the Friends of Simon Wiesenthal Center of Holocaust Studies) are, therefore, granted interested party status in the present case, but solely with respect to the issue of the constitutionality of s. 13 and any related provisions of the Act. [21] The interested parties shall have the right to present evidence, cross-examine, and make submissions, relating to the constitutional issue only. They will not, however, be permitted to overlap or repeat the evidence, cross-examination, or submissions of Mr. Warman, the Commission, Mr. Lemire, or the Attorney General of Canada. [22] Ms. Kulaszka has raised certain concerns regarding the additional costs arising from the participation of additional parties (such as photocopying, faxing and courier costs). These matters can be addressed at the next case management meeting. Signed by Athanasios D. Hadjis OTTAWA, Ontario February 23, 2006 PARTIES OF RECORD TRIBUNAL FILE: T1073/5405 STYLE OF CAUSE: Richard Warman v. Marc Lemire RULING DATED: February 23, 2006 APPEARANCES: Richard Warman On his own behalf Giacomo Vigna / Ikram Warsame On behalf of the Canadian Human Rights Commission Barbara Kulaszka On behalf of the Respondent Simon Fothergill On behalf of the Attorney General of Canada Paul Fromm Douglas H. Christie Marvin Kurz On behalf of the Canadian Association for Free Expression On behalf of the Canadian Free Speech League On behalf of the League of Human Rights of B'Nai Brith and on behalf of counsel for the Canadian Jewish Congress and the Friends of Simon Wiesenthal Center for Holocaust Studies

2006 CHRT 9

CHRT

Sangha v. Mackenzie Valley Land And Water Board

en

2006-02-24

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6527/index.do

2023-12-01

Sangha v. Mackenzie Valley Land And Water Board Collection Canadian Human Rights Tribunal Date 2006-02-24 Neutral citation 2006 CHRT 9 File number(s) T949/6904 Decision-maker(s) Sinclair, Grant, Q.C. Decision type Decision Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE GIAN S. SANGHA Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - MACKENZIE VALLEY LAND AND WATER BOARD Respondent REASONS FOR DECISION 2006 CHRT 9 2006/02/24 MEMBER: J. Grant Sinclair I. THE COMPLAINT A. The Respondent Mackenzie Valley Land and Water Board B. The Board's Advertisement for Four Regulatory Officers C. The Functions and Responsibilities of a Regulatory Officer D. Screening the Applicants for Interview E. The Interview Process (i) Profile of Dr. Sangha (ii) Profiles of the Six Candidates That Were Offered RO Positions (iii) Stephen Mathyk (iv) Adrian Paradis (v) Allen Kogiak (vi) Ethan Sawchuk (vii) Latisha Heilman (viii) Andrew Hammond F. Why the Six Candidates Were Offered a RO Position and Dr. Sangha Was Not G. Post-Interview Procedure H. Staff Turnover I. Dr. Sangha's Reaction to Not Being Offered the Regulatory Officer Position - Pain & Suffering J. Dr. Sangha's Efforts to Obtain Other Employment - Mitigation (i) Income Earned Since 2001 K. The Remedy for Dr. Sangha L. Using Overqualification to Screen Job Applicants M. The Expert Evidence of Dr. Jeffrey Reitz (i) Educational Levels and Experience Levels of Immigrants and Visible Minorities (ii) Employment Barriers Affecting Immigrants and Visible Minorities (iii) Representation of Immigrants in Highly Skilled Occupations (iv) Why Immigrants Accept Work For Which They Are Overqualified (v) Are Overqualified Workers Less Satisfactory? N. Older Workers - Age Discrimination O. The Board's Expert - Dr. Derek Chapman P. Personnel Selection Practices, Overqualified and Job Fit Q. Pre-Screening the Overqualified R. Reasons for Screening Out the Overqualified S. Other Consequences of Hiring the Overqualified T. Dr. Reitz's Use of Census and Labour Force Data U. Barriers to Visible Minority Immigrants V. His Assessment of the Board's Interview Method W. Dr. Chapman's Assessment of Dr. Sangha X. Has the Complainant Established a Prima Facie Case? Y. The Prima Facie Case for the Complainant Z. Has the Board Answered the Prima Facie Case? AA. What is the Appropriate Remedy? II. THE AWARD I. THE COMPLAINT [1] Dr. Gian S. Sangha filed a complaint dated May 6, 2002 with the Canadian Human Rights Commission. He alleges that the respondent, the Mackenzie Valley Land and Water Board (Board) discriminated against him on the grounds of race, national or ethnic origin, colour, religion and age by refusing to hire him for the Regulatory Officer (RO) position with the Board. He alleges that this refusal is contrary to s. 7 of the Canadian Human Rights Act. A. The Respondent Mackenzie Valley Land and Water Board [2] The Board is a regulatory authority established under the Mackenzie Valley Resource Management Act. The primary function of the Board is to process applications for land use permits and water licences in those areas of the MacKenzie Valley in the Northwest Territories where land claim agreements have not yet been concluded, i.e. in unsettled land claim areas. The Board also processes transboundary land and water applications in the Mackenzie Valley where the application transcends the boundaries of more than one settlement area. [3] Some examples of activities that require a land use permit are the use of explosives greater that 50 kg; the use of vehicles greater than 5 tons; camp sites to be used for more than two hundred person days; fuel storage greater than two thousand liters; construction of buildings greater than one hundred square meters. [4] Activities that require a water licence include the use of water for gas and oil exploration, mining and milling, power facilities, agriculture, conservation and recreation. B. The Board's Advertisement for Four Regulatory Officers [5] On August 11, 2001, the Board placed an advertisement in the Vancouver Sun for four RO positions, at a salary range of $48,410 to $60,770. The position required: an undergraduate degree in science, environmental studies, ecology, resource management or a related field, with two years experience in a related environmental field; or a post secondary diploma in environmental management or a related field and three years experience; knowledge of environmental issues in Canada's North, especially relating to mining, and oil and gas developments; knowledge of the technology associated with the reduction of impacts caused by developments in a northern environment; operating knowledge of Microsoft Office software; experience working in remote locations; ability to write technical reports; a Class 5 drivers licence. [6] The RO position was for a term of three years, subject to a six month probationary period, with the possibility of a two year extension. C. The Functions and Responsibilities of a Regulatory Officer [7] The primary responsibility of a RO is to process land use permit and water licence applications. When the Board receives an application for a permit, it is assigned to an RO whose first task is to ensure that the application is complete. If not, the RO will contact the applicant and request further information. The RO refers to a checklist which is a step-by-step outline of the RO's duties when an application is received. [8] Once the application is complete, the RO sends it out for review. The Board has a distribution list of reviewers, which includes First Nations communities, the relevant Federal Government departments and departments of the Government of the North West Territories. The RO must ensure that all of the reviewers get copies of the application and have an opportunity to review and provide comments back to the RO. [9] After receiving the reviewers' comments, the RO synthesizes them into a staff report for consideration by the Board. The staff report includes the application details, comments of the reviewers and whether there is public concern or a potential harm for the environment. [10] If no concerns have been identified, the RO will so indicate in the staff report and draft the licence or permit for the Board's approval. The Board has a standard list of conditions and the relevant conditions are put in the licence. If there are concerns identified in the staff report, it is left to the Board for its decision. [11] ROs spend a great deal of time communicating with the applicants and the reviewers. This involves phoning, writing or emailing the applicant for more information or responding to applicants' inquiries as to the status of their application. There is a statutory time limit to review the application and issue the Board's decision. There is pressure on the RO to meet these timelines. [12] ROs often have to contact the reviewers numerous times, coaxing them to send in their comments so that the staff report can be prepared and sent to the Board for decision within the time period. [13] The ROs must have some, but not a lot, of knowledge of the technical issues in the application. More detailed technical expertise is available from the Senior RO or from outside consultants. [14] It is also important that an RO have some northern experience, such as understanding of the environmental issues in the north; northern living experience and some familiarity with First Nations communities. D. Screening the Applicants for Interview [15] The Board received 38 applications for the four RO positions. Of the 38 applicants, two had grade 12; six had diplomas; 22 with Bachelor degrees; six with Master's degrees; and two with Ph.D.s. [16] An Interview Committee was struck to review the applications received and decide which applicants the Board would interview. The Interview Committee consisted of Wanda Anderson, Manager of Finance and Administration; Karl Lauten, Manager of Regulatory Reviews; and Peter Lennie-Misgeld, Sr. Regulatory Officer. Each of them reviewed the applications and prepared a list of who they thought should be interviewed [17] The Interview Committee chose 12 applicants for interviews. It screened out all of the Grade 12 applicants; 71% of those with a diploma; 60% of those with a Bachelor's degree, and all of those with a post-graduate degree, except for Dr. Sangha. This suggests that the Board used educational credentials as screening criteria, both on the low side and on the high side. [18] Ms. Anderson did not select Dr. Sangha for an interview. She felt that, given his qualifications, he would likely become bored with the job fairly quickly. Karl Lauten did want to interview Dr. Sangha. He thought that Dr. Sangha might be a good fit for Technical Advisor, which position was vacant. But at that time, the Board had not considered filling the position. Mr. Lennie-Misgeld, who was the junior member on the Interview Committee, said that he deferred to Mr.Lauten in choosing Dr. Sangha to be interviewed. [19] Ms. Anderson testified that the Interview Committee had discussed this possibility. But she was clear in her evidence, which was not challenged, that Dr. Sangha was interviewed only for the RO position. The Technical Advisor position was never filled and was later eliminated. [20] Dr. Sangha testified that he was never told during the interview that he was being considered for Technical Advisor. E. The Interview Process [21] The interview was a structured interview in which a set of standard questions was put to each candidate interviewed. There were no questions asked by the interviewers relating to personal characteristics, such as, race, colour, national or ethnic origin, religion or age. [22] The questions focused on the skills of the potential candidate and the knowledge that the candidate had of the Board and its processes, the experience of the candidate, together with salary expectations and a starting date. [23] Each of the candidates was given a score by the interviewers. Interview notes were taken by all of the interviewers, which notes were filed at the hearing, except those of Mr. Lennie-Misgeld who had discarded all of his interview notes. [24] Of the twelve people interviewed for the RO position, four were offered a job. Two of those did not accept the offer and the Board made two more offers which were accepted. [25] Dr. Sangha was not made an offer. Ms. Anderson advised him by email on September 17, 2001 that the four RO positions had been offered to other candidates. (i) Profile of Dr. Sangha [26] Dr. Sangha's educational qualifications are: B.Sc., Agriculture (Punjab University, India, 1972); M.Sc., Landscape Planning (Technical University of Berlin, Germany 1983); Ph.D., Environmental Science (Technical University of Berlin, 1983); Certificate in Project Planning & Management (Technical University of Berlin, Germany 1989). [27] He is fluent in German, Punjabi, Hindi and English. He has co-authored two books and has written a number of research papers in the environmental field. [28] Dr. Sangha has a varied work experience. During the course of his studies in Germany, Dr. Sangha worked for the German Federal government as an environmental scientist dealing with various environmental issues. [29] In 1990, Dr. Sangha assumed the position of Associate Professor at Punjab Agricultural University and remained in that position until 1996 when he came to Canada with his family. He taught courses in ecology and urban environment; land use and resources conservation; watershed conservation and management plan; environmental and impact assessment. [30] When he arrived in Canada, Dr. Sangha believed that there were few opportunities for a new immigrant in a Canadian university. So he applied for jobs in the environmental sciences throughout Canada. He wanted to gain Canadian experience, which hopefully would get him a permanent position in his field. [31] He first worked as a voluntary worker with the Langley Environmental Partners Society, in Langley, B.C. This was a community based organization whose focus was watershed restoration. He prepared a plantation scheme for wetland restoration and conservation and worked there for about five months in 1997. He was not paid and did not work full time. He did it to gain experience. [32] For six months in 1997-1998, Dr. Sangha worked as a Senior Research Scientist with Kam Biotechnology Ltd in Surrey, B.C. Dr. Sangha worked on a waste water remediation project. [33] In 1998-1999, Dr. Sangha worked for the Fraser Valley Regional District in Chilliwack, B.C. as an Environmental Promotion and Educational Development Assistant, basically dealing with waste management plans. He was sponsored in this position by HRDC in a program designed to provide work experience to recent immigrants. [34] From March 1999 to June 2000, Dr. Sangha worked as a production manager for the N.A.T.S. Nursery Ltd. [35] At this point in time, Dr. Sangha applied for university positions and was offered the position of Assistant Professor, Environmental Studies, at St. Cloud State University, Minnesota. This was a contract position from September 2000 to May 2001. When the contract ended, Dr. Sangha applied for a tenured position, but the position was not filled for budgetary reasons. [36] When he returned from Minnesota, Dr. Sangha worked as a landscape gardener for residential properties in and around Vancouver. It was a labour-type of job; running the lawnmower, hoeing, weeding, tending the garden. He had been doing that for about a half year, when he was involved in a car accident and was quite seriously injured. He did not return to work at that job. [37] In March 2004, he started work as a bookkeeper with the Gill Electric Company in Vancouver and continues in that position. (ii) Profiles of the Six Candidates That Were Offered RO Positions. (iii) Stephen Mathyk [38] Stephen Mathyk has a Renewable Resource Management Diploma (Lethbridge Community College, 1998); Fish and Wildlife Technology Certificate (Lethbridge Community College, 1999); and a B.Sc. in Environmental Science (University of Lethbridge, 2001). [39] He has four years experience in operating in both an independent and team environment dealing with resource management and environmental policies. His experience includes dealing with multiple user groups, including environmental activists, special interests groups, First Nations and governmental bodies. He had experience in northern issues, remediation technologies and techniques, and drafting technical reports and applying and enforcing municipal, provincial and federal legislation. (iv) Adrian Paradis [40] Adrian Paradis has an Environmental Monitoring and Enforcement Diploma (Lakeland College, Alberta, 1995-1997). He attended the University of Alberta from 1997 to 1999 taking courses in Land Remediation, Reclamation and Conservation. [41] He worked as an Environmental Technologist for various companies between 1997 and 1998 and has worked as an Environmental Technician conducting Phase I, II, III, environmental site assessments. He has training in techniques of revegetation, reclamation and decommissioning techniques. He also has experience in dealing with regulatory bodies and landowners. (v) Allen Kogiak [42] Allen Kogiak has a diploma in Renewable Resource Technology (Aurora College, Fort Smith, NWT, 1994) and a PITS Certificate in Environmental Land Management (1997). [43] He has considerable experience working in the North, working as a Fisheries Management Technician in Hay River, NWT (1993-1994); a field worker for the Salt River First Nations, Fort Smith, NWT, doing research, mapping, conducting scientific research and liaising with the public and governments (1994-1995); working as a research management officer for DIAND, Inuvik, NWT, which involved working with municipal, territorial and federal government officials, First Nations, Community Leaders, consultants and industry executives to exchange and obtain information on legislation requirements, prepare reports, and maintain records and files (1995-2000). He also worked with the Dogrib Rae Band, Rae, NWT as a Colomac Mines Clean up Project Coordinator (March 2001-May 2001) and as a Site Superintendent Trainee at the Colomac Mine site at Tli Cho logistic, Yellowknife, NWT. (vi) Ethan Sawchuk [44] Ethan Sawchuk obtained a B.Sc. in Land use and Environment studies (University of Saskatchewan, 2000). He also has an advanced Certificate in Biology. He was a Land Management Officer with the Inuvialuit Land Administration where his responsibilities were to review and process land use development applications, consult and coordinate with industry representatives, government and aboriginal community organizations, undertake inspections, and produce reports. (vii) Latisha Heilman [45] Latisha Heilman has a B.Sc. in Environmental Biology (University of Alberta). She is trained in GIS (Geographical Information Systems). Her experience includes working as a field and lab assistant at the University of Alberta, in the Department of Biological Sciences. Her responsibilities included experimental design and setup, collection of data in the field, organizing and interpreting data, techniques of analysis, and providing written reports. She has no northern experience. (viii) Andrew Hammond [46] Andrew Hammond has a BA in Archeology/Anthropology, and Native Studies (University of Saskatchewan, 1997). He has considerable experience working in Canada's north, including working as an Environmental Technician for BHP Diamonds Inc. in Yellowknife, NWT (1997-2001. He also worked on the Community Consultation database for the Tibbit to Contwoyto Lake Winter Road Joint Venture (1997-2001). [47] He was a Policy Analyst with the Ministry of Aboriginal Affairs of the GNWT working in Yellowknife. Some of his responsibilities included editing and revising internal guidelines used in land claim negotiations. [48] From November 1993 to June 1994, he was a Research Policy Analyst at Aurora College in Iqaluit, NU, where he was part of a team conducting a five year corporate review of the Iqaluit campus. [49] From 1991 to 1992, he was a Research Analyst with the Department of Health, GNWT, Yellowknife, where he reviewed and evaluated the department's health position on the northern health, research and development programs. From 1990 to 1994, he also worked as a Science Administrator with the Science Institute of NWT, Yellowknife. F. Why the Six Candidates Were Offered a RO Position and Dr. Sangha Was Not. [50] Both Ms. Anderson and Mr. Lennie-Misgeld testified as to how the Interview Committee selected the six candidates for an offer. Mr. Lauten did not appear at the hearing. All of the candidates interviewed were given a numerical score representing each of the interviewer's assessment of how the applicant has answered the interview questions. The maximum score was 60. [51] Ms. Anderson rated Dr. Sangha 41/60 based on her assessment of his answers to the questions. She rated no on her interview notes indicating that she would not make an offer to Dr. Sangha. She noted that Dr. Sangha could be overqualified, would be easily bored and would look for another job quickly. She also noted that Dr. Sangha was more of a policy person, that he was able to answer the questions well and he came across as very smart. [52] Ms. Anderson testified that during the interview, Dr. Sangha was not asked by any of the interviewers why he had applied for the RO position. Nor did they raise their concerns that he would find the job unchallenging or boring and would be likely to leave at the first opportunity. [53] Ms. Anderson said that Dr. Sangha had asked for a salary of $55,000. If he had been hired, Ms. Anderson said he would have been paid that amount. [54] Ms. Anderson scored Stephen Mathyk 48/60. She wrote yes on her interview notes indicating that he should be made an offer. She felt that with his background, knowledge and his experience, he was a very good candidate. He had enforcement background and that experience would benefit the Board. [55] Ethan Sawchuk was working for the Inuvialuit Land Administration as a Regulatory Officer. This was particularly relevant to the work of the Board. Ms. Anderson rated him 45/60. His education and his northern experience made him a very good candidate. Ms. Anderson's interview notes indicated Mr. Sawchuk had good technical knowledge relating to land use permits. He also had good policy understanding and first hand experience. [56] Ms. Anderson gave Allen Kogiak a score of 37/60. Mr. Kogiak was working at the Colomac mine site in the NWT which was under remediation. Ms. Anderson thought that he had good knowledge of that mine site, its problems and what needed to be done in terms of remediation. He also had northern experience and had lived in the north. She indicated in her interview notes that he should be hired. [57] Adrian Paradis had two years education from the University of Alberta in Land Remediation, Reclamation and Conservation and had an Environmental Enforcement Diploma. He also had experience working in the oil fields of Alberta. Because there were a number of oil and gas projects coming on in the NWT, Ms. Anderson considered Mr. Paradis to be a good candidate for oil and gas issues. She indicated yes for hire in her notes and scored Mr. Paradis 45/60 on the interview. He did not have any northern experience. [58] Because Allen Kogiak and Ethan Sawchuk did not accept the Board's offers, two further offers were made to Latisha Heilman and Andrew Hammond. [59] Ms. Anderson rated Ms. Heilman 36/60 on the interview. She noted in her interview notes that Ms. Heilman had training in GIS and that land use planning was one of her main interests. She thought she would be a good candidate for the RO position because at the time there were no land use plans in place anywhere in any of the regions. It would be useful for the Board to have someone with that knowledge and training. [60] As for Andrew Hammond, Ms. Anderson gave him a score of 36/60 on the interview. He had been working for at least three years for BHP Diamond's project in Yellowknife as an Environmental Technician. He had northern experience and had working knowledge of one of the important mine sites and how mines actually operate in the north. She also felt that it was very relevant that Mr. Hammond worked at the Ministry of Aboriginal Affairs for the GNWT as a Policy Analyst in Yellowknife, and had experience in dealing with land claim negotiations and in particular dealing with First Nations and communities. [61] Karl Lauten, the Manager of Regulatory Operations in August/September 2001, did not give evidence at the hearing of the complaint, but his notes of the interviews were put in evidence. Mr. Lauten rated Stephen Mathyk 48/60. He rated Adrian Paradis 41/60, Allen Kogiak 50/60 and Ethan Sawchuk 47/60. He rated Latisha Heilman and Andrew Hammond 46/60 for the interviews. [62] Interestingly, Mr. Lauten rated Dr. Sangha the highest on the interview, scoring him 52/60. He indicated that Dr. Sangha had lots of academic and work experience and made much effort to review the Board's website, the Act and Regulations. But he noted that Dr. Sangha had no northern experience. [63] Mr. Lennie-Misgeld testified as to why he thought the six candidates that were offered jobs were the best qualified. His views on the candidates are as follows: [64] Latisha Heilman's education and work experience were directly applicable to the work of an RO. [65] Stephen Mathyk had enforcement experience and the Board was looking to add additional capacity in terms of environmental enforcement. [66] Adrian Paradis had done some site assessments and also had experience in remediation of well sites. His experience would be useful to the Board for oil and gas applications. [67] Andrew Hammond had valuable experience working in the archeological field in the north. He had also worked for one of the diamond mines so he had some directive environmental field experience. His experience working with First Nations people and in the archeological field was relevant to the responsibilities of the RO liaising and working with First Nations and Community groups. Archeological and cultural views are very important to the people of the North. It is a primary concern to them when it comes to development applications. [68] Allen Kogiak had experience working as Resource Management Officer for DIAND. In that position, he was responsible for enforcing terms and conditions of land use permits which is one of the major functions of the Board. His experience on the enforcement side would also contribute to the Board's work. He had also worked at the Colomac mine site, an abandoned mine near Yellowknife, so he had a combination of enforcement experience as well as field experience in terms of remediation. [69] Ethan Sawchuk at the time was working for the Inuvaluit Land Administration as a Land Management Officer. The role of that agency is very similar to the work of the Board so he had directly applicable work experience. [70] As to Dr. Sangha, Mr. Lennie-Misgeld believed that he had the experience and the education. But the RO position is an entry level position in the environmental field. The work can be very repetitive and he believed that it would not sufficiently challenge Dr. Sangha's skillset. And there is little opportunity for promotion at the Board for ROs. G. Post-Interview Procedure [71] After the interviews were completed, the Interview Committee met and decided who would be made offers. They based their decision on the resumes, the interview notes, who they considered would be a good fit, and the knowledge and experience they could bring to the position. The interview scores were just one criterion and certainly not the deciding factor. [72] There was unanimous agreement amongst the Interview Committee that offers should be made to Stephen Mathyk, Adrian Paradis, Allen Kogiak, and Ethan Sawchuk as the best candidates. The next two ranked candidates were Latisha Heilman and Andrew Hammond. [73] As for Dr. Sangha, there was consensus in the Interview Committee not to offer him a position. Their view was that Dr. Sangha was overqualified for an RO. Because the position was an entry level position, they believed that he would be bored by the type of work required and was not a good fit for the position. The other candidates much better suited the job requirements. [74] Robert Wooley, the current Executive Director of the Board, (he joined the Board in October, 2001) gave evidence at the hearing. Although Mr. Wooley was not at the Board when the new RO's were hired, he testified that he had reviewed Dr. Sangha's resume and had spoken with the members of the Interview Board. He said that he was and continues to be impressed by Dr. Sangha's academic credentials. But he did not see how those credentials would serve him well as an RO. His credentials are far greater than what is required. [75] In forming this view, Mr. Wooley said that he relied on his experience as a senior manager for over 20 years, managing people with varying backgrounds. This experience indicates that someone with Dr. Sangha's qualifications would not be satisfied with the work environment, or with this level of job, and would not be happy for any length of time. [76] Mr. Wooley's assessment of the work of an RO was that it is a step above tedious. The job can have its interesting moments, but for the most part, it is a lot of the same thing, pushing paper, cajoling, phoning, faxing and assembling a stack of papers for the staff report. H. Staff Turnover [77] Mr. Wooley testified that when he came to the Board as the Executive Director, in October 2001, there was a lot of employee turnover. He believes that it has turned around somewhat, but there is still some turnover. [78] Mr. Wooley does not consider that to be such a bad thing. A lot of the staff are young and are career oriented. Working at the Board gives them exposure to a wide spectrum of industries and technologies. They get known by consulting groups, exploration companies and by government. Often when they have enough experience they will move to one of these organizations. [79] Others leave the Board for other reasons, such as spousal transfers, or they get tired of living in Yellowknife, tired of the dark and the cold during the winter. Some just want to go elsewhere. Employee turnover is an issue related to being located in Canada's north. That is one of the reasons the Board prefers northern experience. [80] According to Mr. Wooley the Board must be very careful to hire somebody with some assurance that they will stay for some time. It is expensive to bring them to the NWT. The Board pays their relocation expenses and also gives them ongoing training. A lot of money is expended, and if someone decides that the north is not where they want to be, then that money is wasted. [81] Expenses include around $10,000 to get someone to come to the NWT and they are also paid relocation expenses at the end of the term. [82] Ms. Anderson testified that staff turnover at the Board was about the same as for other agencies in the north. After a certain point in time, Board staff seeks to advance their careers. At the Board the only option is to look elsewhere, and most of the staff that left, did just that. Ms. Anderson regards staff turnover at the Board as a cost of doing business in the north. [83] On the question of turnover, there were six Regulatory Officers at the Board in October 2001. They were Elaine deBastien, Greg Smith, Janpeter Lennie-Misgeld, Darren Campbell, Emma Pike, and Lori Bruno. Lennie-Misgeld, deBastien and Pike all started in 2000. The others started later. [84] Darren Campbell left in September 2001 for personal reasons. His wife did not like living in Yellowknife. [85] Mr. Lennie-Misgeld moved up to Senior Regulatory Officer in August 2001. [86] Elaine deBastien left in 2002/03. Her husband moved to Edmonton and she moved with him before her contract ended. [87] Greg Smith left in 2004. His wife got a job at the hospital in Sudbury, and he moved with her, before his three-year term ended. [88] Lori Bruno left for personal reasons as well. Her husband didn't like Yellowknife, so she got a job in Fort McMurray. [89] Emma Pike went to the federal government. [90] Andrew Hammond resigned before his term was finished because his wife, a medical doctor, got a job in Ontario. [91] Latisha Heilman was offered an extension, after her three year term, but she declined. She wanted to travel. [92] Adrian Paradis' and Stephen Mathyk's terms were extended for a further two years. [93] Thus, since 2001 the Board had almost a complete turnover of ROs over the following 4-5 years. With the departure of these Regulatory Officers, the Board has hired four more Regulatory officers; two were hired about a year and a half ago, and two were hired seven months ago. They were hired through an open competition which was posted on the Board's website. But Mr. Wooley was not sure if the positions were advertised in any major papers. I. Dr. Sangha's Reaction to Not Being Offered the Regulatory Officer Position - Pain & Suffering [94] After the interview, Dr. Sangha returned home positive that he would be offered the job. He told his family that the interview had gone well. [95] But when he received the email from Ms. Anderson advising that he would not be offered an RO position, he was very upset. Obtaining the position meant that he would be working within his profession and gaining some Canadian experience in the environmental field. It also meant very much economically. It was a good paying job and his family was planning to join him in Yellowknife. [96] Dr. Sangha also testified that he became depressed over not getting the job. He consulted his family doctor who prescribed anti-depression medication. His doctor advised him that the medication could have some negative effects. For this reason, he only took them occasionally and then eventually stopped using them. J. Dr. Sangha's Efforts to Obtain Other Employment - Mitigation [97] Some time after his application was not accepted, Dr. Sangha started working as a landscaping gardener. He had to travel each day for one hour in the heavy traffic and was working outside in the rain and the wind. He was so tired from this work that he had no time or no energy to look for other jobs. [98] After a while, Dr. Sangha again began to look for jobs. He sent out about 15 resumes, had two or three interviews, but received no offers. He applied for jobs in government and in the private sector. Sometimes the jobs advertised were in his specialty, sometimes not. Even if not, he would still apply. [99] Dr. Sangha contacted St. Cloud State University to see if there was any opportunity and was told again that there was no opportunity. [100] Since he started working at Gill Electric, he has not applied for any other jobs. (i) Income Earned Since 2001 [101] Dr. Sangha filed a summary of his earnings and his tax returns. This shows earnings of $62, 701 from all sources. [102] Dr. Sangha also has an arrangement with Columbia State University whose website lists him as Professor, Occupational Safety and Health. This is an online university that offers courses online. [103] The website also shows that he has taught courses for Columbia State University, including, toxicology, waste management, pollution prevention, industrial hygiene and advanced air quality control. Dr. Sangha said that he does not teach students, but rather interacts with the students by email or by telephone. [104] He started with Columbia State University sometime in 2003. His evidence is that this is not a full-time position, that he is not paid a regular salary, but is paid an honorarium of between $300 and $600 per assignment. He continues to work for Columbia State University. He says that he does so to keep in touch academically. K. The Remedy for Dr. Sangha [105] Dr. Sangha asks for compensation for three years at a salary of $55,000, being his potential earnings as an RO. He also asks that the Tribunal order the Board to hire him as an RO at the next available opportunity. [106] He also claims compensation for pain and suffering in the mid-range, given the maximum of $20,000. [107] The Commission seeks a policy remedy that the Board work with the Commission to ensure that this type of discrimination does not occur in the future. [108] As to Dr. Sangha's request to be hired as an RO, Mr. Wooley testified that, future land claim settlements could result in a significant reduction in the Board's staff. With each land claim settlement, the Board's jurisdiction to issue land use permits and water licences would extend only to the remaining unsettled areas and transboundary applications. [109] The Board staff could shrink to a five or six-person office, including the Executive Director and Office Manager to deal with budgets and two or three ROs. He therefore resists Dr. Sangha's request to be hired as an RO. [110] On the question of whether an RO would be extended, Mr. Wooley said that it has been his policy to try to maintain a stable workforce. If an RO was a good employee and the Board was happy with their work, they could expect to be extended, usually for two more years. Unless the work of the Board is significantly reduced. L. Using Overqualification to Screen Job Applicants [111] The Commission and the complainant assert that decisions not to hire overqualified job applicants have an adverse effect on visible minority immigrants. Overqualification is an illegitimate criterion to use when applied to this particular group. It contains a number of assumptions about the group and their motivations that are not necessarily valid. [112] The Commission and the complainant also allege that a practice or policy of not hiring the overqualified amounts to age discrimination against older workers. M. The Expert Evidence of Dr. Jeffrey Reitz [113] The Commission and the complainant called Dr. Jeffrey Reitz to give expert opinion evidence on their behalf. Dr. Reitz is a Professor of Sociology, the Harney Professor of Ethnic, Immigration and Pluralism Studies and Director of the Graduate Collaborative Program in Ethnic and Pluralism Studies, at the University of Toronto. [114] He has 35 years of experience in sociological research and teaching on the general topics of race and ethnic relations, and immigration. Much of his research focuses on the employment of immigrants and visible minorities, and barriers to the employment success of minorities including discriminatory barriers. Dr. Reitz has published seven books and monographs, as well as numerous articles, book chapters and edited books that have examined these and related topics. [115] Dr. Reitz was qualified to give expert evidence in the area of race and ethnic relations and immigration issues as they relate to employment. [116] The global thesis of Dr. Reitz's evidence is that not hiring overqualified job applicants has an adverse impact specifically on visible minority immigrants. Overqualified job applicants are those whose education and experience significantly exceed the requirements specified as necessary for a particular job. [117] Dr. Reitz defines immigrants as foreign-born residents of Canada irrespective of their length of stay in Canada and whether or not they are citizens. Since the 1970's, the origins of the majority of immigrants to Canada are Asia, the Caribbean, Latin America and Africa. Immigrants to Canada from these regions are considered to be racial or visible minorities in Canada. [118] Dr. Reitz has five supporting conclusions. (i) Educational Levels and Experience Levels of Immigrants and Visible Minorities [119] Conclusion One: Immigrants are, on average, more highly educated than native-born Canadians. Dr. Reitz points out that immigrants arriving in Canada since the 1970s, most of whom are considered to be visible minorities, possess high education levels and a substantial portion are qualified professionals. According to the 1996 Canadian census data, immigrants average 0.4 more years of education than native-born. And with more recent immigrants, the trend is upward so that the relative level of education of immigrants is closer to 0.6 years more. [120] The reason for this, says Dr. Reitz, is that the largest single number of immigrants to Canada are independent or economic immigrants, who are selected on the basis of a points-based system. According to Dr. Reitz, the 1996 Canada census showed that working age immigrants arriving in the most recent five year period had an average of 14 years of education and nearly 30 % had university degrees. Among later arriving immigrants, in 2000 for example, about 45 % had university degrees. (ii) Employment Barriers Affecting Immigrants and Visible Minorities [121] Conclusion Two: Visible minority immigrants face barriers to employment at their level of qualification. These barriers force highly qualified visible minority immigrants to seek lower skilled jobs. [122] Dr. Reitz' evidence is that the research identifies various types of barriers to equal opportunity for immigrants. These include discriminatory hiring practices based on race, immigrant status or origin; employers' unfamiliarity with foreign acquired education; lack of credit for non-Canadian work experience/no Canadian work experience; licensing bodies' refusal to recognize foreign acquired education/experience; and lack of social contacts useful in gaining labour market access. [123] Dr. Reitz refers to various studies and reports which show significant numbers of immigrants report difficulties in qualification recognition. Significant numbers (20%) of visible minorities perceive discrimination in employment. [124] Dr. Reitz also referred to comparative analyses (census and labour market surveys) of immigrants' earnings and the earnings of native-born Canadians, which reveal the following: immigrants receive a significantly smaller earnings premium both for formal education and for work experience. visible minority immigrants earn significantly less than non-visible minority immigrants. [125] Earnings analysis provides an estimate as to how much immigrants would have earned by substituting important characteristics (work experience, education) into the earnings equations of Canadians. [126] This analysis shows that if immigrants were given full compensation (based on the data of Canadians) for their years of education and work experience (and no origin discount), immigrant earnings would increase by $15 billion. Further analysis suggests that $2.4 billion (16%) of that earning deficit is due to skill underutilization. (iii) Representation of Immigrants in Highly Skilled Occupations [127] Conclusion Three: As a result of barriers, immigrants are under-represented in highly skilled professional or managerial jobs, the knowledge occupations, and are over-represented in lower-skilled jobs, compared to Canadians with the same paper qualifications. [128] Dr. Reitz's evidence is that, often the qualification of immigrants performing low-skill jobs is considerably higher compared to Canadians doing the same job. [129] Dr. Reitz referred to studies that showed, for highly qualified individuals, immigrants are underrepresented in the knowledge occupations. Knowledge occupations are those where a high proportion of workers have university education (e.g. science, engineering, health, education and the professions). The 1996 census showed that, in the knowledge professions there were 35% of immigrant men with a Bachelors degree compared to 59% of Canadian men with similar qualifications; 59% of male immigrants with post-graduate degrees versus 79% of male Canadians. [130] For women, the discrepancy was even greater: 49% of post-graduate female immigrants compared to 78% female Canadians with post-graduate degrees. [131] From 1981 to 1996, the importance of the knowledge occupations and the skill levels of immigrants have increased. Yet the difference (vis-à-vis Canadians) in income level and representation has grown as well. Immigrant representation in the knowledge occupations has fallen in absolute terms from 1981 to 1996. [132] Dr. Reitz also pointed out that the analysis of the 1996 data also shows that for the knowledge occupations as a whole, immigrants have greater difficulty accessing managerial positions compared to professional positions. [133] Denied work in the knowledge occupations at their skill level, and experiencing greater educational competition in lower-level work, immigrants end up often in the least skilled occupations. [134] Recent studies (based on the 2001 census data) found that among recent immigrants with a university degree, and employed between 1999 and 2001, at least 25% have jobs requiring no more than a high school education. This is compared to 12% of Canadian university graduates in the same age group in the year 2001, an overrepresentation of visible minorities by a factor of more than 2. [135] In the older age group, 45 to 54, the proportion of visible minority university graduates working in low education jobs was 38%. The corresponding percentage for Canadian-born in the same age group, 10%, is an overrepresentation by a factor of almost 4. (iv) Why Immigrants Accept Work For Which They Are Overqualified. [136] Conclusion Four: Immigrants often accept work for which they are overqualified because they are denied employment at their level of qualification. [137] Dr Reitz's evidence is that immigrants come to Canada from countries in which economic opportunities are significantly less than in Canada. For the independent immigrant, improving economic opportunities is their prime motive for migration. [138] Their point of comparison is not the jobs held by comparatively qualified Canadians. It is the jobs held in their country of origin by comparatively qualified persons there. This comparison favours Canada, notwithstanding the barriers in Canada to equality of employment. [139] However, Dr. Reitz pointed out, even if they have plans to move ahead and overcome these barriers to higher levels of employment, they often may not be able to achieve this for various reasons. They can't finance the required education to move ahead or they can't afford to take time off work and jeopardize their children's educational future. In this latter respect, they may have a future orientation which puts a priority on a better life for the next generation. (v) Are Overqualified Workers Less Satisfactory? [140] Conclusion Five: There is no human resources principle regarding the hiring of overqualified workers. [141] Dr. Reitz`s evidence is that there is a great deal of folklore among practitioners on both sides of this question. Studies of overqualified workers support both positive and negative outcomes. The Hersch study (1995) suggests good performance, less training, more promotions, but higher turnover. Most labour force studies show that the overqualified have higher earnings than other workers within their occupations. [142] However, Dr. Reitz says, there do not appear to be any studies specifically focusing on immigrants. His position is that turnover results from opportunities. But, for immigrants, barriers eliminate these opportunities, with the result that the turnover problem may not be so acute for visible minority immigrants. [143] Dr. Reitz agrees that much of the statistical data that he relied upon for his analysis is self-reporting information. This would be a perception of what individuals believe their educational qualifications to be. He also agrees that there is no measurement to verify the educational equivalence of the self-reported information. [144] Dr. Reitz was asked about Canadian job applicants and whether they would not be equally impacted by a policy to not hire the overqualified as would be a visible minority immigrant. [145] His response was that anyone who does not get a job for which they are qualified is obviously going to be impacted. The question is who is most likely to be in that applicant pool? The evidence is that, for all of the reasons he has put forward, that person is likely a racial minority immigrant. So if you have a policy of not hiring the overqualified, that is the person who will be screened out. N. Older Workers - Age Discrimination [146] Dr. Reitz put the proposition that not hiring the overqualified has also been considered as a source of discrimination against older workers. Dr. Sangha is in this group. The argument is that older workers who experience job loss, but who wish to continue work, must apply for entry level employment because of lack of opportunities at their former level of employment and pay. However, because of their long experience and accomplishments, many employers are reluctant to hire them believing that they may be bored or lack commitment to a lower level position. Employers will rely on overqualification as the basis for rejecting the older candidates. O. The Board's Expert - Dr. Derek Chapman [147] Dr. Chapman is an Associate Professor in Industrial and Organizational Psychology at the University of Calgary. He teaches undergraduate courses in personnel selection and organizational behaviour. At the graduate level, he teaches a Ph.D. seminar in personnel selection, a Ph.D. seminar in recruiting and an advanced course on Industrial and Organizational psychology. [148] Dr. Chapman has a B.A. (Psychology and English, St Mary's University, 1989); and an MA /Ph.D. (Industrial and Organizational Psychology, University of Waterloo, 2000). He has published extensively in refereed journals in the area of personnel selection, recruiting, and organizational psychology. This includes research on how people choose their jobs, and what factors lead to that decision, as well as research relating to person/organization fit and employee turnover. [149] Dr. Chapman worked for six years as a personnel selection officer in the Department of National Defence. This involved interviewing job applicants, assessing their credentials, directing structured interviews, writing reports, and doing individual assessments on individuals for approximately 120 to 140 different types of occupations. [150] He has worked as an independent consultant for a number of organizations, assisting them in developing and validating their selection systems and recruiting operations, so that the systems operate to select the best people into the best jobs with the most appropriate fit. [151] Dr. Chapman was qualified as an expert in the area of personnel selection, recruiting, and organizational psychology, to address whether the selection methods used by the Board to evaluate candidates for the RO position were appropriate, including the decision not to hire Dr. Sangha. And whether the practice of an employer to exclude candidates on the basis of poor job fit, including overqualification, is a common method in the human resource field. [152] In preparing his expert testimony, Dr. Chapman reviewed all of the 38 applications received by the Board, including Dr. Sangha's. He also reviewed the job description and the job advertisement for the RO position. P. Personnel Selection Practices, Overqualified and Job Fit [153] Dr Chapman's overall opinion is that not selecting candidates for positions of employment on the basis of poor person/job fit, including overqualification is a widely practiced human resource selection method. There is a great deal of data that suggests that there are negative outcomes for both people who are hired into positions for which they are overqualified, as well as negative outcomes for employers such as paying higher wages, turnover effects, reduced or poor employee attitudes and lower job performance. [154] Dr. Chapman defines personnel selection practices as being the procedures that organizations go through to try to hire the best fitting person for the job which they may have available. These procedures identify the knowledge, skills, and abilities that are required for a particular job and the goals of selection. [155] Dr. Chapman does not accept the proposition that, in the case of an overqualified person, an employer should look beyond the criterion of good person/job fit and consider the personal circumstances of the candidate, i.e. what they can offer beyond their education and experience. [156] For Dr. Chapman, no one is overqualified in relation to candidate selection. An individual becomes overqualified only when they apply for a job for which their credentials exceed the requirements of the job. [157] Dr. Chapman prefers to use the concept of person/job fit, meaning how well a person's skill sets mesh with the requirements of the job. In this context, overqualified refers to a poor fit between the individual and the job that they are applying for because their formal credentials exceed what is required for the job. Q. Pre-Screening the Overqualified [158] Dr. Chapman strongly disagreed with Dr. Reitz that there is no human resource principle regarding the hiring of overqualified workers. That there is only folklore on both sides of the issue. [159] On the contrary, screening candidates on the basis of overqualification is a well established human resources principle and practice. Personnel selection is an entire field devoted to trying to match people to their jobs. [160] It is an appropriate criterion for a number of reasons. For the most part, employers usually don't have time to sit down and talk to each person about their story and have them explain why they are applying, when it is apparent that their credentials are either far below or far above the levels that are required for the job. [161] In support of his position, Dr. Chapman referred to a 1992 study (Bills, The Mutability of Educational Credentials: How Employers Evaluate Highly Credentialed Job Candidates). This study looked at the extent to which employers were willing to interview job applicants whose credentials were very high relative to what the job required. [162] This study found that 72% of employers would not hire atypically credentialed candidates. This speaks to the prevalence of screening out applicants with these credentials at the pre-interview stage. R. Reasons for Screening Out the Overqualified [163] Dr. Chapman's evidence is that there are a number of consequences of hiring an individual who is a poor person/job fit, both for the organization and for the individual who is hired. A 2000 study (Kristof-Brown, Consequences of Individual's Fit at Work) showed that there is a strong relationship between person/job fit, job satisfaction and organizational commitment. An employee who fits well to the demands of the job is much less likely to indicate an intention to want to leave that job. [164] On the other hand, poor person/job fit leads to an early voluntary turnover. This is a very important factor for the employer. This is so says Dr. Chapman, because hiring practices that likely result in high turnover, incur a huge cost to the organization. Typically, it costs about 30% of a person's salary to hire a person. This includes advertising costs; at a higher job level, headhunting fees; costs of flying people in for interviews and the cost of the interviewers' time to interview people. [165] There also can be high costs of training, having new employees learn the tasks associated with the job. There is always a period of time when people are not as productive as they can be because they are learning the job. [166] Dr. Chapman testified that there are selection and recruiting practices specifically designed to reduce the likelihood of turnover. Certainly hiring on the basis of job fit is one of the best practices to avoid turnover. [167] Dr. Chapman was asked whether sometimes an employer should consider not only an applicant's credentials, but also their personal circumstances. An applicant may be overqualified, but for personal reasons, would be more likely to perform better and more likely to stay in the job. [168] His response was that there sometimes could be a case made for people who have something more to offer. But the labour market works in such a way that people tend to gravitate towards the highest paying jobs they can get which match their skill sets. [169] You could make a case for someone who doesn't quite make the qualifications but brings something else to the organization. For example, the applicant has a diploma, not a degree, but has experience in remediation of oil and gas exploration, so the employer could stretch the fit criteria a bit on the low side. [170] But Dr. Chapman would not recommend doing it on the high side. The research suggests that one of the reasons that people with good credentials end up in good jobs is because they are blocked from lower level positions as overqualified. They are forced to stay in the job market until they find a more appropriate job for their background. That results in good outcomes for those people who remain in the job market long enough. [171] But on the facts of this case, why should the Board hire Dr. Sangha when there were 38 applicants, a number of whose credentials were more congruent with the RO job than Dr. Sangha's. S. Other Consequences of Hiring the Overqualified [172] Dr. Chapman identified other consequences for the employer of hiring someone who is overqualified. Employees who are hired and are a mismatch for their job often resent being there. They know that they can do more. They might be working for people who don't have the same level of skills, and yet they have to answer to these people. This can make it difficult to manage those individuals. [173] The data also suggests that job attitudes and performance is lower for people who are overqualified compared to those who are congruent for the job. Someone who is overqualified can do the job. But their attitude is such that they do not pay much attention to the work, thinking it is not very important, and is beneath them. They are not very challenged in those positions. They are not motivated to do a good job because they don't see it as being important work or something that is sufficiently up to their skills and knowledge. [174] Also, people with higher credentials often demand higher wages. That can result in higher costs for the employer if they are forced to hire people with credentials that are not needed for the job. [175] The research also shows negative mental health effects on people who are hired into underemployed positions, such as increased depression, increased mental anxiety. One study (Leanna and Feldman, 1995, Finding New Jobs after a Plant Closing) followed people who were unemployed versus underemployed. People who took jobs that didn't meet their skillset, versus those who remained unemployed and stayed in the job market had equal levels of anxiety and depression. T. Dr. Reitz's Use of Census and Labour Force Data [176] Dr. Chapman was critical of Dr. Reitz's reliance on Statistics Canada data. Census data is self-reporting data. It is a survey that is sent out to people with the expectation that they complete it correctly. But their response is their own understanding of the situation. There is no objective checking to see whether the credentials that are reported are, in fact, equivalent to what people say they are. As a consequence, says Dr. Chapman, you want to be cautious in interpreting these statistics and drawing conclusions from them. He would prefer not to do so without more on-the-ground research to see what is really driving these relationships. U. Barriers to Visible Minority Immigrants [177] Dr. Chapman was very clear that he did not consider it appropriate to hire immigrants who are overqualified for a particular position of employment. He would not make a distinction between immigrants and any other group. If there are barriers faced by immigrants to equal workplace opportunity, he advocates that these barriers be addressed rather than putting someone into a position for which they are overqualified. [178] To require employers to hire people into jobs that are incongruous with their abilities is not good skill utilization. Investing in systems that evaluate credentials or eliminating discriminatory barriers would be a much more effective way of dealing with this problem. V. His Assessment of the Board's Interview Method [179] Dr. Chapman testified that, broadly, there are two major types of interviews. Smaller organizations typically use unstructured interviews. This is where someone sits down with the applicant, goes over their resume and chats with them for a while. The questions can vary from candidate to candidate, depending on what topics come up. There is no list of questions. Different people might conduct the interview differently. [180] The second type is the structured interview where each candidate is asked the same job-related questions and their answers are scored. Because there are no informal conversations, every candidate is treated the same, the interview is more objective, and there is little opportunity for bias. [181] Dr. Chapman said that there are different types of scoring methods that can be used. Each individual question may be scored; or each interviewer gives an overall score at the end of the interview; or the scores of the interviewers may not be aggregated. [182] The scores among the interviewers may vary because of a severity bias or leniency bias, when an interviewer typically scores either lower or higher than his/her colleagues. But as long as the rank order is the same, it is not a concern. [183] Dr. Chapman said that he was pleasantly surprised that the Board used a structured interview. Very few small organizations have the resources to do so. His assessment was the questions were well chosen, were job related, and did not relate to any of the protected grounds. W. Dr. Chapman's Assessment of Dr. Sangha [184] Dr. Chapman did his own assessment of whether Dr. Sangha would be a good fit for the RO position. He concluded that Dr. Sangha's qualifications were incongruous with the duties of the RO position. He was a successful academic at two universities. The first job in Canada on his resume indicates that he was a senior research scientist, which is consistent with what you might expect from someone with a Ph.D. [185] Other jobs that he stated on his resume indicate he was a manager in a nursery, so he was someone with management responsibilities. His most recent job in his area of expertise was as an assistant professor at a respected U.S. University. [186] Given that the RO position is essentially clerical in nature, there would be very little opportunity to utilize the skills and knowledge that Dr. Sangha acquired through his many years of education. [187] Dr. Chapman would have screened him out before the interview. To bring someone in with Dr. Sangha's background for the RO job just perpetuates underemployment in that individual. [188] In Dr. Chapman's opinion, to hire Dr. Sangha would have negative organizational outcomes with respect to lower performance on the job due to being bored, being unchallenged, as well as being a high turnover risk. Based on the information that he saw, Dr. Chapman was very surprised that Dr. Sangha was brought in for an interview. [189] Dr. Chapman also has some concerns relating to Dr. Sangha's employment history as it relates to turnover. He has a pattern of short-term employment, four different jobs over four years. This is normally indicative of a person being unhappy with their jobs and moving from place to place. [190] Dr. Chapman believes that although the Board agreed to interview Dr. Sangha, even though he was obviously overqualified, the Board, in the end, made the right decision not to hire Dr. Sangha. X. Has the Complainant Established a Prima Facie Case? [191] In a case before this Tribunal, the onus is on the complainant to establish a prima facie case of discrimination. A prima facie case is one which covers the allegations made, and which if believed, is completed and sufficient for a decision in favor of the complainant, in the absence of an explanation from the respondent. [192] A prima facie case is one which covers the allegations made, and which if believed, is complete and sufficient for a decision in favor of the complainant, in the absence of an explanation from the respondent. (Ontario (HRC) v. Etobicoke, [1982] I.S.C.R. 202; Ontario (HRC) and O'Malley v. Simpson Sears Ltd, [1985] 2 S.C.R., 563) [193] In Lincoln v. Bay Ferries Ltd., 2004 F.C.A. 204, the Federal Court of Appeal provided further guidance as to the approach to be taken by the Tribunal. The Court said that, the Tribunal should not take into account the Respondent's answer before deciding whether the complainant has established a prima facie case. [194] To establish a prima facie case on the facts of this case, I find that the complainant must show: that the complainant possessed the basic qualifications for the job; that the complainant is a visible minority immigrant; that the complainant is overqualified vis-à-vis the job in question; that overqualified status was one of the reasons why the complainant was not hired; and that there is a correlation between visible minority immigrant status and overqualified status. [195] Clearly, the complainant satisfies (a), (b) and (c). As to (d), the Board concedes that one of the reasons why Dr. Sangha was not hired for the RO position was because he was deemed to be overqualified. [196] Thus it remains to be determined whether the complainant can satisfy (e). Y. The Prima Facie Case for the Complainant [197] Dr. Reitz's testimony indicated that most immigrants to Canada in recent decades have been highly educated members of a visible minority. However, his statistics indicate that, despite comparable education levels to native-born Canadians, immigrants are under-represented in the knowledge occupations. [198] Moreover, studies indicate that immigrants earn substantially less than native-born Canadians having equivalent qualifications (education and work experience). A significant portion of this earnings deficit is attributable to the fact that many immigrants are not fully utilizing their acquired skills. [199] Dr. Reitz argues that there is a correlation between under-representation of immigrants in jobs at their highest level of qualification, and over representation in jobs where their qualifications exceed what is required. Because visible minority immigrants are disproportionately excluded from the higher rungs of the job market due to barriers to employment at this level, they seek employment at lower echelons where their qualifications exceed the job requirements. [200] Hence, the experience of applying for a job for which one is overqualified, or working in such a job, is disproportionately an immigrant experience. While many native-born Canadians may find themselves seeking or performing work for which they are overqualified, they are less prone to be in this situation because the native-born do not face the same widespread exclusion from jobs that utilize the full extent of their qualifications. [201] When an employer, such as the Board, adopts a rule against the hiring of overqualified candidates, it may appear to be neutral in that it applies equally to all overqualified candidates (immigrant and native-born). And yet it has a discriminatory effect upon overqualified immigrant candidates: it imposes, because of some special characteristic of the group, penalties or restrictive conditions not imposed on other members of the work force. [202] What penalties or restrictive conditions? Simply this: to the degree that native-born candidates who are rejected on the basis of over-qualification have the option of seeking work more suited to their resumes, this option is largely foreclosed for immigrants. They have already been excluded from suitable jobs and can reasonably expect this exclusion to continue indefinitely into the future. Thus, a policy or practice against the hiring of overqualified candidates affects them differently from others to whom it may also apply. [203] The evidence of Dr. Reitz establishes that there is a correlation between visible minority immigrant status and overqualified status. For this reason, I have concluded that the complainant has established a prima facie case that he was rejected on a prohibited ground of discrimination. Z. Has the Board Answered the Prima Facie Case? [204] In answering this question, reference is first made to the decision of the Federal Court of Appeal in Holden v. CNR (1990), 14 C.H.R.R. D/12; 112 N.R. 395 (F.C.A.). In this case, the complainant alleged that he had been discriminated against because of his age, by being forced to take early retirement. In dealing with the complaint, the Review Tribunal ruled that discrimination must be the basis for the imputed decision. The Federal Court of Appeal disagreed. It concluded that if discrimination is only one factor among other non-discriminatory factors, that is enough to find a contravention of the Act. [205] The Board conceded that the complainant's overqualified status played a significant role in its decision not to hire him. Thus for the Board to refute the prima facie case, it must refute the correlation between overqualified status and visible minority immigrant status. [206] Dr. Chapman was critical of Dr. Reitz's reliance on census and labour survey data because it is self-reporting information, being the perception or belief of those reporting. He pointed out that there is no objective checking to see whether the reported credentials are valid or equivalences. Dr. Chapman would be cautious in interpreting these statistics and drawing conclusions from them. [207] Dr. Chapman's critique is general. It does not nearly address the specific alleged deficiencies in Dr. Reitz's analysis. It was incumbent on the Board to prove: that Dr. Reitz' data on skill underutilization are inaccurate or no longer accurate; that visible minority immigrants do not make up a disproportionately large component of the overqualified population; that therefore they are no more likely to find themselves applying for a job for which they are overqualified than the native-born; and that on this basis there is no reason to believe that when an employer establishes a rule against hiring the overqualified, this rule has a greater impact on the visible minority immigrant candidate. [208] The Board did not do so. I find that the Board has not provided a sufficient answer to the complainant's prima facie case. Accordingly, I conclude that Dr. Sangha's complaint of discrimination under s. 7 of the Act is substantiated. Having found liability on the ground of national or ethnic origin, I do not need to decide whether Dr. Sangha was discriminated against on the basis of age. AA. What is the Appropriate Remedy? [209] The Commission asks that the respondent cease the practice of screening out visible minority immigrant candidates on the basis that they are overqualified for a particular job. The Commission and Dr. Sangha ask that he be hired for the next available RO job. They also request compensation for lost wages for a period of three years, being the three year term between September 2001 and September 2004, at $55,000/year, grossed up for taxes. Lost wages should also take into account any loss of pension and other benefits associated with the position. Any income that Dr. Sangha earned during that period of time should be deducted from this award. [210] Dr. Sangha and the Commission also ask for $10,000 for pain and suffering plus interest on this amount at the Bank of Canada prime rate from the date of the complaint to the date of the payment. [211] Finally, the Commission asks for an order that the Board take measures in consultation with the Commission, to redress the discriminatory practice, or to prevent the same or similar practice from occurring in the future. II. THE AWARD [212] My assessment of the facts of this case and the witnesses from the Board suggests that it is unlikely that the Board would apply this practice in the future. The witnesses from the Board were open and forthcoming about how they were very affected by the allegations of discrimination, and in my view they have been very sensitized to issues facing visible minority immigrant job applicants. For this reason, I do not order that the Board take measures in consultation with the Commission to redress the discriminatory practice or to prevent it from occurring in the future. [213] I do order that, where a visible minority immigrant has been chosen for an interview for a position with the Board, that the Board cease using any policy or practice that would automatically disqualify such candidate for the reason that they are overqualified for the job. On the basis that they are overqualified for the job. [214] In this respect, the Board should not rely upon impressionistic markers that the overqualified are ill-suited for the job because they will become bored/unmotivated or cause morale problems or quit prematurely. It is incumbent on the Board to make some inquiry into the candidate's motives for applying for the job, in order to obtain a more accurate prognosis of the candidate's behaviour if hired. [215] Turning now to the question of instatement and compensation for lost wages, in deciding this claim, I am guided by the decision of the Federal Court of Appeal in Canada (Attorney General) v. Morgan, [1992] 2 F.C. 401. [216] Morgan dealt with the issue of how to evaluate the compensation for loss of a job opportunity where there is a finding of discrimination by the Tribunal. The relevant part of the discussion is found in the reasons of Marceau J.A. In his reasons, Marceau J.A. says that the complainant is not required to prove that, but for the discrimination they would have certainly obtained the position. To establish damage does not require a probability. Rather, the test for loss of job is a mere possibility so long as it is a serious one. Of course, the uncertainty about whether a job could be denied is relevant to an assessment of the compensation. (p. 412) [217] For Dr. Sangha to succeed in his claim to instatement and for lost wages, he must cross the threshold of showing that there was not just a mere possibility of acquiring the job but a serious one. In my opinion, Dr. Sangha does not meet this threshold. [218] This is where the reasons put forward by the Board other than over-qualification became relevant. The Board's position is that the other candidates chosen for the RO position were more qualified, their qualifications were more congruent for the RO position, than those of Dr. Sangha. I agree. The evidence of the qualifications of the other candidates, as shown on their resumes, and the evidence of Ms. Anderson and Mr. Lennie-Misgeld clearly demonstrate this. I need not repeat this evidence. It is set out in great detail earlier in this decision. [219] For these reasons, I cannot endorse Dr. Sangha's request for instatement and compensation for lost wages. [220] As to Dr. Sangha's claim for pain and suffering, the evidence is that Dr. Sangha felt very positive when he returned home after the interview that he would be offered the position. When he was advised otherwise, he testified that he was very upset. He had been chosen to be interviewed when his qualifications were well known to the Board, yet he was rejected for the job in large part because he was over-qualified. [221] He became very depressed about not getting the job. He consulted his family doctor who prescribed anti-depressant medication which he took for some period of time. But he stopped taking it because his doctor advised that it could have some negative effects. He also said that he could not look for jobs because of his depression and because of his disappointment at not getting the RO job. [222] In closing argument, Dr. Sangha pointed out that one of the reasons he came to Canada was to provide a better life for himself, his family and his children. He has encountered many obstacles to getting a job in his profession even though he is highly credentialed from a well recognized Western European university. Like many new professional immigrants to Canada, he said he was considered overqualified by most of the employers that he applied to. He has not been able to provide a good quality of life for his family that is commensurate with his qualifications. [223] Taking this into account, he decided that he would accept a position that was within his area of expertise although it may not utilize all his skills. The job paid relatively well and would give him Canadian experience. [224] In deciding an amount for pain and suffering, it must be taken into account that the maximum amount of $20,000 is reserved for the most egregious of cases. This is not the situation here. The pain and suffering resulting in this case does not just stem from the actions of the Board. It also stems from the refusal of other potential employers to hire him at his skill level, and discriminatory barriers that affect visible minority immigrants. [225] Having considered all of the relevant facts in this case, I award Dr. Sangha the sum of $9,500 for pain and suffering. [226] I also award interest to be calculated in accordance with R. 9(12) of the Tribunal Rules of Procedure. Interest should run from September 17, 2001, to the date of payment of the $9,500. The total of this amount plus interest shall not exceed $20,000. [227] Finally, Dr. Sangha estimated his out of pocket costs to be $200. The Board shall reimburse him for these costs. signed by J. Grant Sinclair OTTAWA Ontario February 24, 2006 PARTIES OF RECORD TRIBUNAL FILE: T949/6904 STYLE OF CAUSE: Gian S. Sangha v. Mackenzie Valley Land and Water Board DATE AND PLACE OF HEARING: May 9 to 13, 2005 Yellowknife, Northwest Territories DECISION OF THE TRIBUNAL DATED: February 24, 2006 APPEARANCES: Dr. Gian S. Sangha On his own behalf Daniel Pagowski On behalf of the Canadian Human Rights Commission Heather Treacy Jennifer Bayly-Atkin On behalf of the Respondent

2007 CHRT 1

CHRT

Culic v. Canada Post Corporation

en

2007-01-24

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6491/index.do

2023-12-01

Culic v. Canada Post Corporation Collection Canadian Human Rights Tribunal Date 2007-01-24 Neutral citation 2007 CHRT 1 File number(s) T1083/6405 Decision-maker(s) Jensen, Karen A. Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DESD ROITS DE LA PERSONNE SANDY CULIC Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADA POST CORPORATION Respondent REASONS FOR DECISION MEMBER: Karen A. Jensen 2007 CHRT 01 2007/01/24 I. WHAT IS THIS COMPLAINT ABOUT? II. WHAT ARE THE CIRCUMSTANCES GIVING RISE TO THE COMPLAINT? III. WHAT ARE THE ISSUES IN THIS COMPLAINT? IV. WHAT MUST BE PROVEN TO ESTABLISH DISCRIMINATION IN THIS CASE? V. WHAT ARE THE ALLEGATIONS WITH RESPECT TO THE PRIMA FACIE CASE? 5 VI. THE FIRST TIME PERIOD: JUNE 2000 - OCTOBER A. ALLEGATION NUMBER 1 - Repeated questions during pre-shift meetings constituted adverse differential treatment B. ALLEGATION NUMBER 2 - The requirement that Ms. Lipp provide medical information regarding her ability to perform the full-time postal clerk position constituted adverse differential treatment C. ALLEGATION NUMBER 3 - Canada Post's repeated and negative communications with Ms. Lipp regarding her restrictions and the provision of medical information was discriminatory VII. THE SECOND TIME PERIOD - MS. LIPP ASKS TO RETURN TO WORK A. ALLEGATION NUMBER 4 - The refusal to permit Ms. Lipp to return to work until she had attended the IME's in Winnipeg was discriminatory B. ALLEGATION NUMBER 5 - The imposition of disciplinary leave without Pay VIII. WHAT IS THE TRIBUNAL'S CONCLUSION REGARDING LIABILITY? IX. WHAT IS THE APPROPRIATE REMEDY? A. An Order that Canada Post Return Ms. Lipp to Active Service B. An Order that Canada Post Cease its Discriminatory Conduct and Address the Underlying Factors and Effects of the Conduct C. Compensation for Lost Wages D. Compensation for Pain and Suffering E. Special Compensation - s. 53(3) of the Act 71 F. Letter of Acknowledgement G. Costs H. Interest I. WHAT IS THIS COMPLAINT ABOUT? [1] This complaint is about whether Canada Post discriminated against Sandy Lipp (née Culic) on the basis of her disability and gender (pregnancy) in 2000 and 2001 at the Mail Processing Plant in Regina, contrary to section 7 of the Canadian Human Rights Act. II. WHAT ARE THE CIRCUMSTANCES GIVING RISE TO THE COMPLAINT? [2] Sandy Lipp began work as a part-time postal clerk with Canada Post Corporation in Regina in 1991. Postal clerks carry out the important functions of sorting and dispatching mail in Canada. [3] In 1995 and 1997, Ms. Lipp sustained injuries to her neck, shoulder and head areas. In March 2000, Canada Post acknowledged in a letter to Ms. Lipp that she was permanently partially disabled (PPD). [4] As a result of her PPD status, Ms. Lipp had certain restrictions with regard to the tasks that she could perform as a postal clerk. One of these restrictions was that she could generally work only six hours per day. [5] In June 2000, Ms. Lipp applied for a full-time postal clerk position on Shift 3, which is the evening shift at the Mail Processing Plant. Full-time postal clerks generally work eight hour shifts. Therefore, Canada Post required medical documentation establishing that Ms. Lipp could safely work past the six hour restriction that had been set out in her PPD letter. [6] Ms. Lipp provided medical documentation from her physician stating that she could work full-time (eight hour) shifts on modified duties. Canada Post and Medisys, the medical consulting firm that handles Canada Post's occupational health and safety issues, had concerns about this information. Among those was the concern that the information did not provide an objective medical assessment of Ms. Lipp's restrictions and capabilities. [7] Notwithstanding the concerns, Canada Post awarded Ms. Lipp the full-time position on Shift 3 in October 2000. She was permitted to work in that position on modified duties. [8] Canada Post told her, however, that she would still be required to provide more medical documentation regarding her medical restrictions. Consequently, while she was working in the full-time position, Ms. Lipp was asked to attend an Independent Medical Examination (IME) in Regina. As a result of a miscommunication about the date, Ms. Lipp did not attend the IME in Regina in April of 2001. [9] In that same month, Ms. Lipp went on disability leave. She was diagnosed as suffering from major depression and anxiety disorder. [10] In the fall of 2001, Ms. Lipp informed Canada Post that she was fit and ready to return to work. Canada Post told her that before she returned to work, she would be required to attend two Independent Medical Examinations in Winnipeg. One of the IME's was with an occupational specialist and the other was with a psychiatrist. [11] Ms. Lipp was pregnant at the time and told Canada Post that she could not travel as a result of difficulties that she was experiencing with her pregnancy. She refused to attend the IME's. Canada Post placed her on disciplinary leave without pay for her refusal to attend the IME's. [12] On March 18, 2003, Ms. Lipp filed a complaint with the Canadian Human Rights Commission. [13] Ms. Lipp also filed grievances alleging that Canada Post had violated the collective agreement by engaging in an unreasonable delay in returning her to the workplace, and in putting her on disciplinary leave without pay. On April 16, 2004, an arbitrator dismissed Ms. Lipp's grievances (Canadian Union of Postal Workers v. Canada Post Corporation (Re Culic) (16 April 2004), Regina, Union Grievance No's 820-00-00046 & 00051 (Norman). [14] On September 28, 2005, Ms. Lipp's human rights complaint was referred to the Tribunal. Canada Post subsequently brought a motion requesting that the complaint be dismissed on the basis of the doctrine of res judicata. The Tribunal dismissed Canada Post's motion and ordered that the inquiry into the complaint proceed (Culic v. Canada Post Corporation 2006 CHRT 06). III. WHAT ARE THE ISSUES IN THIS COMPLAINT? [15] There was no issue during these proceedings as to whether Ms. Lipp's head, neck, and shoulder problems constituted a disability, and thus, a prohibited ground of discrimination according to the Act. Similarly, there was no issue as to whether Ms. Lipp was pregnant in the fall of 2001, and that differential treatment on the basis of pregnancy would constitute differential treatment on the basis of sex. [16] During the hearing, however, an issue was raised as to whether the complaint should include the allegation that in refusing to return Ms. Lipp to work in the fall of 2001, Canada Post discriminated against Ms. Lipp on the basis of her psychological problems, or her perceived psychological problems. In written closing argument, counsel for Canada Post indicated that he had no objection to the addition of this allegation in the complaint. Therefore, I have included it in the allegations in this complaint. [17] On the second day of the hearing, counsel for the Respondent sought to have the Arbitrator's award entered into evidence. I ruled that the award was admissible on the basis that it was relevant to the issues raised in the complaint, and there was strong judicial authority supporting such a decision (Ford Motor Co. of Canada v. Ontario (Human Rights Commission) (2001), 209 D.L.R. (4th) 465). I stated however, that I would reserve my decision as to what weight I would accord to the arbitrator's findings until the final decision in the matter. Given that the arbitrator's findings are relevant to Canada Post's explanation for the allegedly discriminatory conduct, I will address the weight that I have accorded them in the part of my decision that deals with Canada Post's explanation. [18] The issues, therefore, in this case are: Whether the requirements for medical information about Ms. Lipp's disability, including the requirement that Ms. Lipp attend an IME in Regina, were discriminatory; Whether the manner in which Canada Post handled its requirements for information was discriminatory; and, Whether the requirement that Ms. Lipp attend two IME's in Winnipeg before she could return to work in the fall of 2001 was discriminatory. IV. WHAT MUST BE PROVEN TO ESTABLISH DISCRIMINATION IN THIS CASE? [19] It is a discriminatory practice, directly or indirectly, to refuse to continue to employ, or, in the course of employment, to differentiate adversely in relation to an employee on the basis of a prohibited ground of discrimination (CHRA, s. 7). [20] The complainant has the initial burden of establishing a prima facie case of discrimination. The Supreme Court of Canada decision in Ontario Human Rights Commission v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536 at para. 28 (O'Malley) provides the basic guidance for what is required to make out a prima facie case. The Court stated that a prima facie case is one that covers the allegations made and which, if the allegations are believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent. [21] Thus, the question that must be answered with regard to the prima facie case is whether there is credible evidence to support Ms. Lipp's allegations of adverse differential treatment, contrary to s. 7(b) and/or a refusal to employ or to continue to employ Ms. Lipp, contrary to s. 7(a) of the Act. [22] If that question is answered in the affirmative, the onus then shifts to the Respondent to provide a reasonable explanation that demonstrates either that the alleged discrimination did not occur as alleged or that the conduct was somehow non-discriminatory. If a reasonable explanation is provided by the Respondent, it is up to the Complainant to demonstrate that the explanation is merely a pretext for discrimination (Basi v. Canadian National Railway Company (No.1) (1988), 9 C.H.R.R. D/5029 at para. 38474 (C.H.R.T.)). [23] Conduct may be found to be non-discriminatory if, in accordance with s. 15(1) of the Act, it is established that it constituted a bona fide occupational requirement (BFOR). Section 15(2) of the Act stipulates that to be considered a bona fide occupational requirement, it must be established that accommodation of the individual would impose undue hardship considering health safety and cost. V. WHAT ARE THE ALLEGATIONS WITH RESPECT TO THE PRIMA FACIE CASE? [24] Ms. Lipp's allegations relate to two distinct periods of time. The first set of allegations relates to the period from June 2000, when she applied for a full-time postal clerk position on Shift 3, until October 2001, when Ms. Lipp's disability leave ended. Ms. Lipp alleged that the following conduct on the part of Canada Post during the first time period constituted adverse differential treatment on the basis of her disability: Repeated questioning about her ability to perform tasks during pre-shift meetings; The requirement that she provide medical information regarding her ability to perform to work as a full-time postal clerk including the requirement that she attend an IME in Regina; Repeated negative communication regarding her restrictions and the provision of medical information regarding her disability; [25] The second set of allegations relates to the period from October 2001, when Ms. Lipp informed Canada Post that she wanted to return to work, until December 2001, when she was placed on disciplinary leave without pay for refusing to attend the IME's in Winnipeg. Ms. Lipp alleges that the following conduct on the part of Canada Post during the second time period constitutes adverse differential treatment on the basis of her disability and/or perceived disability and/or her sex: (4 The refusal to permit her to return to work in the fall of 2001 until she had attended two IME's in Winnipeg; (5.) The imposition of disciplinary leave without pay. VI. THE FIRST TIME PERIOD: JUNE 2000 - OCTOBER 2001 A. ALLEGATION NUMBER 1 - Repeated questions during pre-shift meetings constituted adverse differential treatment [26] During the hearing, Ms. Lipp testified that she was singled out for questioning during pre-shift meetings about whether her medical restrictions would permit her to perform certain scheduled tasks. Pre-shift meetings are ten - fifteen minute meetings conducted by the shift supervisor prior to the start of each shift. Uncontested evidence established that the purpose of the meetings is to assign individual tasks to employees on that shift and to discuss general issues in the plant. [27] In final argument, counsel for Ms. Lipp argued that the questioning of Ms. Lipp during pre-shift meetings constituted adverse differential treatment on the basis of her disability. Counsel for Ms. Lipp further alleged that the process by which tasks were assigned during pre-shift meetings was discriminatory because the schedules were computer-generated and did not take into account the functional limitations of employees. Therefore by its very nature, the process of scheduling employees necessitated the questioning of disabled employees about their abilities and this resulted in systemic discrimination against disabled employees. [28] Canada Post objected to the fact that these issues had been raised for the first time during the hearing. It argued that the Tribunal should refuse to deal with them, given that their late disclosure had deprived Canada Post of an adequate opportunity to address the issues. Counsel for Canada Post said that had he known that the issue of the computer-generation of schedules was in question in this case, he would have called evidence specifically to deal with this point. Should the Tribunal agree to consider this allegation as part of the complaint, the fact that Canada Post was unable to call evidence on this issue because of its late disclosure would cause significant prejudice to Canada Post. [29] I agree with the Respondent's position on this issue. As the Tribunal stated in Uzoaba v. Correctional Services of Canada (1994), 26 C.H.R.R. D/361, when considering whether to deal with allegations that do not form part of the initial complaint, the essential issue is whether the Respondent has been provided with adequate notice of the case that it has to meet, so as to comply with the requirements of procedural fairness. Subsequent decisions of this Tribunal have confirmed this point (see for example: Parent v. Canada (Canadian Armed Forces 2005 CHRT 37). [30] Counsel for Ms. Lipp stated that the issue of pre-shift questioning was raised generally in the complaint form. There, Ms. Lipp stated that in July 1996, her doctor could not provide a date by which she would be fully recovered and able to return to regular duties. She then stated: Subsequently, CPC asked me on a monthly basis, in front of co-workers, if I still required accommodation and to have my doctor complete and submit Occupational Fitness Forms and questionnaires. [31] In my view, the above-noted allegation in the complaint form is not specific enough to constitute notice to the Respondent that the issues of questioning during pre-shift meetings and the computer-generation of work schedules would be raised during the hearing. The evidence presented during the hearing indicated that pre-shift meetings occurred on a daily basis. Ms. Lipp testified that she was asked three or four times a week during pre-shift meetings about her ability to perform certain tasks. Thus, it seems to me that the statement made in the complaint form was not in reference to the allegations about pre-shift questioning or the computer-generated work schedules. [32] Moreover, I was unable to find any other references in the pre-hearing material to the issue of pre-shift questions or the work schedule. In preparation for the hearing, the Complainant provided a cursory Statement of Particulars. The Respondent requested additional particulars. This was not provided. [33] Rule 9(3) of the Tribunal's Rules of Procedure stipulates that, except with leave of the Tribunal, parties shall not be permitted to raise issues or adduce evidence during the hearing unless they have been disclosed prior to the hearing. During the hearing, counsel for the Respondent did not raise any objections to the admission of evidence on this issue. However, when counsel for the Complainant made the allegation for the first time in closing argument that the scheduling process and the pre-shift questioning were discriminatory, counsel for the Respondent raised his objections. I think it is fair to say that it may not have been until closing argument that counsel for the Respondent became aware of the use that was going to be made of the evidence on these points. [34] The Respondent suffered prejudice as a result of the failure on the part of the Complainant to raise the issues of pre-shift questioning and the allegation of systemic discrimination based on the scheduling process prior to the hearing. As counsel for the Complainant herself stated, Canada Post provided no evidence about the scheduling process and in particular, it provided no evidence about any undue hardship that would result from adapting the computer program to obviate the need for questioning. The Respondent was not provided with sufficient notice that it was necessary to lead such evidence. [35] Therefore, I will not consider the allegations of pre-shift questioning and systemic discrimination based on the scheduling process to be part of the complaint. B. ALLEGATION NUMBER 2 - The requirement that Ms. Lipp provide medical information regarding her ability to perform the full-time postal clerk position constituted adverse differential treatment [36] Ms. Lipp acknowledged that when she applied for a full-time postal clerk position in June of 2000, Canada Post was entitled to ask for assurances from her doctor that she could safely perform the requirements of a full-time postal clerk. However, when her doctor wrote a note on June 29, 2000, indicating that she was fit to work an eight hour shift on light duties, the requirement for further medical information should have ended, according to Ms. Lipp. [37] She argued that Canada Post had ample information at its disposal confirming the validity of the information provided in the doctor's note. In particular, Canada Post had transferred Ms. Lipp to the full-time position, and she worked in that position for six months. This, she argued, established that she could work full-time on modified duties. The insistence, therefore, that Ms. Lipp provide further medical information and attend an IME in Regina was unreasonable and imposed a burden upon her that other employees in full-time positions did not have to bear. (1) Is there credible evidence to support this allegation? [38] Ms. Lipp testified that when a full-time postal clerk position came up on Shift 3 she applied for it. As the most senior part-time postal clerk she was entitled to the position, according to the collective agreement. However, Ms. Lipp testified that after she applied for the position the Superintendent on Shift 3, Mr. David Slater, told her that she could not have the position because Canada Post needed someone who could perform the full range of duties in the full-time shift. She testified that Mr. Slater told her to get a doctor's note stating that she could work the eight hour shift. [39] Ms. Lipp testified that she did this. She produced a note from her physician, Dr. Chooi, indicating that she could move: from part-time to full time (8 hours/day) from 29 June 2000 light duty. [40] A month after she produced her doctor's note, Medisys informed Ms. Lipp that more information was needed than had been provided in the note. Medisys asked her to take a set of questions that had been formulated by a Medisys physician, Dr. Lori Koz, to her doctor. This was known as an Acquisition of Medical Information (AMI). Ms. Lipp was to return the AMI to Medisys by August 31, 2000. [41] Ms. Lipp testified that she did not understand why she was required to produce more information about her ability to work full-time. She testified that prior to applying for the full-time position she had worked eight-hour shifts on numerous occasions, notwithstanding her six-hour work restriction. This was because Canada Post had either offered her the additional hours, or had scheduled her to work eight-hour shifts. [42] Ms. Lipp testified that she wrote Mr. Slater a letter dated August 21, 2000, asking why she was required to have an AMI completed. She asked Mr. Slater whether Canada Post had considered the fact that she had regularly been working an eight hour shift when she was part-time, thereby demonstrating her ability to work eight hours a day. [43] Ms. Lipp testified that she did not receive answers to any of her questions. However, she proceeded to have the AMI completed by her physician, Dr. Chooi. [44] In the cover letter to Dr. Chooi, Dr. Koz stated that there would be a number of job duties in the full-time postal clerk position that Ms. Lipp could not do if she was restricted to light duties. Dr. Koz indicated that Canada Post wanted clarification as to what factors had changed such that Ms. Lipp was now able to increase her hours of work, but not her duties, specifically sorting oversize letter mail. Dr. Koz stated in her letter that Canada Post wished to determine whether Ms. Lipp could now participate in a gradual return to work plan toward the full duties of a full-time postal clerk. [45] In his response to the questions posed by Dr. Koz in the AMI, Dr. Chooi indicated that Ms. Lipp needed to work full-time in order to get enough pay to cope with her financial situation. He indicated that Ms. Lipp could not sort oversize mail and that she had reached her maximum medical improvement at this point in time. Dr. Chooi also indicated that he felt Ms. Lipp would suffer physical harm if she undertook a gradual return to work. [46] The information from the AMI was provided to Medisys. Medisys reviewed the information from the AMI and evaluated it in the light of Ms. Lipp's medical file. Medisys then provided what is known as a Field Report to Canada Post. Uncontested evidence established that Field Reports are designed to protect the privacy of the employee by providing Canada Post with only the information that is needed to provide appropriate workplace accommodations or to otherwise respond to medical concerns that have been raised by the employee. [47] In a Field Report dated September 20, 2000, Dr. Lori Koz of Medisys indicated the information provided by Dr. Chooi was consistent with the previous information on the file. Dr. Koz further stated that given that Ms. Lipp had had her medical conditions for a number of years, the likelihood of a vast change in her restrictions at that point in time was unlikely. She stated that there might, therefore, be some merit in an IME. [48] Ms. Lipp testified that on October 1, 2000, she was transferred to the full-time position on Shift 3. She testified that there was no indication from anyone at Canada Post or Medisys that her transfer to the full-time position was contingent upon the provision of any further medical information. [49] Nonetheless, on October 18, 2000, Ms. Lipp was informed that she was required to attend an Independent Medical Examination (IME) in Winnipeg on October 30, 2000. [50] Mr. Keith Jeworski, President of the Regina local of the Canadian Union of Postal Workers, testified that article 33.10(c) of the Collective Agreement provided that Canada Post could require an independent medical examination by a doctor selected by the Corporation. Mr. Jeworski testified, however, that IME requests were very uncommon in Regina at that time. Prior to Ms. Lipp, Canada Post had not, to his knowledge, made any other requests for an IME. [51] Ms. Lipp asked Canada Post to reconsider the decision to send her to Winnipeg for the IME. Flying made her ill, and traveling by land on the highways was difficult for her because her first husband was killed on Highway One in an accident. [52] Canada Post granted Ms. Lipp's request not to travel to Winnipeg and agreed to reschedule the IME at a later date in Regina. In the letter advising her that the appointment would be rescheduled, Mr. Dale Hippe, the Manager of Mail Operations, stated that Canada Post's ability to accommodate Ms. Lipp in any permanent modified duty position and particularly as it related to her pending promotion to full time status was dependent upon an understanding of her physical limitations and the impact of those limitations on Canada Post's Operations and Ms. Lipp's peers. [53] Ms. Lipp testified that she worked in the full-time position on modified duties until April 2, 2001. She testified that she did not experience any difficulties performing the modified functions of her position. She did not take sick leave or any other time off to deal with problems arising from working full-time. [54] On or about March 22, 2001, Ms. Lipp was informed that she was required to attend an IME in Regina on April 2, 2001, with Dr. Milo Fink. However, Ms. Lipp and Mr. Jeworski testified that, as a result of a miscommunication about a proposed change in the date of the appointment, Ms. Lipp did not attend the IME. Ms. Lipp subsequently went on sick leave. She testified that while she was on sick leave, she attended an IME appointment on July 30, 2001, that she had rescheduled after she missed the one in April. However, when she got to the appointment, she found that, unbeknownst to her, it had been cancelled. [55] Ms. Lipp testified that she felt great emotional stress as a result of the demands to produce medical information and to attend appointments. She testified that it was difficult for her to arrange the appointments and to organize her schedule to attend them. She felt stress every time she received a letter requiring that she provide more medical information. She understood the need to provide medical information about her disability, but felt that Canada Post was asking her for medical information that was not necessary. (2) The Tribunal's Findings and Conclusion Regarding the Prima Facie Case for Allegation # 2 [56] For the following reasons, I find that Ms. Lipp has established a prima facie case that Canada Post's insistence that she attend an IME in Regina constituted adverse differential treatment on the basis of her disability. [57] While Ms. Lipp's testimony throughout the hearing was not always entirely credible, I find that the information she provided with regard to the above-noted allegations was credible. For example, her testimony that she had worked eight hour shifts on numerous occasions prior to applying for the full-time job was confirmed later by evidence provided by Mr. Slater indicating that between March and June of 2000, Ms. Lipp worked an eight hour shift on 22 occasions. Her testimony with regard to the above-noted allegations was straightforward, unembellished and consistent. [58] Ms. Lipp provided medical information indicating that she could work full-time, but that she could not increase her duties beyond the modified duties that she had been performing. Canada Post then allowed Ms. Lipp to assume the full-time position on modified duties. She worked full-time for 6 months until she went on leave. There were no indications that Ms. Lipp was having any difficulty performing the modified functions of a full-time postal clerk. [59] In spite of the fact that Ms. Lipp was working work full-time on modified duties, Canada Post continued to require that she provide more medical information to establish that she could do the job. She felt great emotional stress when she received requests to provide more information or to attend an appointment since they were communicated in such a way as to put her job security in question. Moreover, it was difficult for Ms. Lipp to provide the information and to attend the appointments. [60] I find that Ms. Lipp has established a prima facie case that Canada Post's ongoing requirement to establish her fitness to work full-time constituted adverse differential treatment. She was treated differently from non-disabled employees in that her job security in the full-time position was contingent upon fulfilling the requirement, in a form acceptable to Canada Post, for satisfactory medical information about her disability. Given that the requirement stemmed from Canada Post's stated concern that her disability might prevent her from being able to perform the functions of a full-time postal clerk, I find that Canada Post's adverse differential treatment of Ms. Lipp was based on the fact that she is disabled. (3) Does Canada Post have a reasonable explanation for its otherwise discriminatory practice? [61] Once the prima facie case has been established, the onus then shifts to the Respondent to provide a reasonable explanation that demonstrates either that the alleged discrimination did not occur as alleged or that the conduct was somehow non-discriminatory. Conduct may be found to be non-discriminatory if, in accordance with s. 15(1) of the Act, it is established that it constituted a bona fide occupational requirement. [62] Canada Post has argued that the requirement to attend the IME was a bona fide occupational requirement. In order to establish this, Canada Post must demonstrate that accommodating Ms. Lipp in the full-time position without the information provided by the IME would impose undue hardship on Canada Post, having regard to health, safety and cost (s. 15(2) of the Act). [63] In determining whether a BFOR has been established, it is helpful to keep in mind the principles set out by the Supreme Court of Canada in British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U., [1999] 3 S.C.R. 3 (Meiorin) and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 (Grismer)). (4) Does the evidence support the allegation that the requirement to attend an IME was a bona fide occupational requirement? [64] Both Mr. Slater and Mr. Hippe testified about the events that led to the decision to require that Ms. Lipp attend an IME. Mr. Slater testified in a straightforward manner and candidly admitted that his recollection of the events was poor. He often said we would have or I would have before he provided his testimony of what he thought had occurred. Therefore, I have reduced the weight of his testimony in certain areas based on the fact that his recollection was poor and it appeared that he was, at times, trying to reconstruct what he would have done based on his review of the documentation during the hearing. However, I was impressed by the fact that Mr. Slater candidly admitted at times that there was a problem with the way things had been handled by Canada Post. Moreover, he did not appear to exaggerate or embellish any of the information he provided. Were it not for the fact that his memory of the events was so poor, I would have accorded his testimony significant weight. [65] Mr. Hippe's memory of the events was somewhat stronger even though the extent of his involvement was less. He too testified in a straightforward and candid manner. His evidence with respect to this time period was internally consistent and held up well under cross-examination. [66] I find, on a balance of probabilities and for the reasons that follow that the requirement that Ms. Lipp provide further medical information in the form of an AMI and that she attend an IME in Regina were bona fide occupational requirements. (a) The Requirement for medical information from an AMI and an IME is rationally connected to the functions of the position. [67] The first step in assessing whether the employer has successfully established a BFOR defence is to identify the general purpose of the impugned standard and determine whether it is rationally connected to the performance of the job (Meiorin, supra, at para. 57). The focus at this stage is not on the validity of the particular standard that is at issue, but rather on the validity of the general purpose. [68] The evidence of Mr. Hippe and Mr. Slater was that Canada Post required objective medical information about employees' medical restrictions for a number of reasons: (1) to ensure that employees are able to safely perform the functions of their position; (2) to enable Canada Post to properly accommodate disabled employees; and, (3) to enable Canada Post to maximize the amount and variety of work that disabled employees could do within their restrictions. [69] Mr. Slater testified that objective, concise medical information is needed from disabled or injured employees to enable Canada Post to ensure that they are safely working within their restrictions and that they are working productively. [70] With respect to the third goal, Mr. Hippe testified that Canada Post requires employees to provide updated medical information whenever they change positions or their restrictions change so that Canada Post can determine how best to maximize the employee's work potential within their restrictions. Medical information about an employee's restrictions allows Canada Post to determine how to accomplish the goal of efficiency and productivity in the workplace without putting the safety and well-being of the individual employee or other employees at risk. [71] On the basis of this evidence, I am satisfied that the requirement to provide medical information is rationally to the goals of employee safety, accommodation and productivity. Moreover, I am satisfied that all three goals are valid. Canada Post has an obligation to ensure that employee productivity and efficiency is achieved without compromising its obligation to accommodate disabled employees, and without putting employees' safety and health at risk. To do so, Canada Post requires medical updates on employees' restrictions as the restrictions change or as the work assignment changes. (b) Canada Post required the additional medical information including the IME in the honest and good faith belief that it was necessary to achieve the above-noted objectives. [72] Once the legitimacy of the employer's more general purpose is established, the employer must take the second step of demonstrating that it adopted the particular standard with an honest and good faith belief that it was necessary to the accomplishment of its purpose, with no intention of discriminating against the complainant (Meiorin, supra, at para. 60). The focus at this stage in the analysis of the BFOR is on evidence of the subjective views of the respondent with regard to the particular standard, which in this case, is the requirement for more medical information. [73] The evidence established that Canada Post formulated the requirement that Ms. Lipp provide additional medical documentation and attend the IME in Regina in the honest and good faith belief that this was necessary to accomplish the goals set out above. [74] Mr. Slater and Mr. Hippe testified that neither the note from Ms. Lipp's doctor nor the Field Report from Dr. Koz provided them with them with the clear, objective medical information that they needed to ensure that Ms. Lipp was being safely accommodated in the full-time position. [75] The Field Report from Dr. Koz of Medisys, dated September 20, 2000, indicated that a significant number of Ms. Lipp's medical concerns were based upon subjective information provided by Ms. Lipp to her doctor. Dr. Koz questioned whether a vast change in her condition was likely given that Ms. Lipp had been working under medical restrictions for a number of years. She stated that there might be some merit in an IME prior to taking a final look at how to accommodate Ms. Lipp within Canada Post. [76] Mr. Hippe testified that the Medisys Field Report would have been discussed at a weekly case management meeting with superintendents. He stated that he would have had concerns, as a result of the Field Report, that even with the AMI results Canada Post still had insufficient information to be able to accommodate Ms. Lipp in the full-time position. [77] Mr. Slater candidly admitted that it was unusual to require an employee to provide further medical information once she had already assumed the position. However, Mr. Slater's evidence was that Canada Post continued to be concerned about Ms. Lipp's long-term capacity to work past her 6 hour restriction. That was why she was required to attend the IME even after she had been in the full-time position for six months. [78] I find that Canada Post required the additional medical information including the IME in the honest and good faith belief that it was necessary to achieve the goals of safely accommodating Ms. Lipp in productive work. (c) The Requirement for additional medical information was reasonably necessary having regard to health and safety. [79] The final step in determining whether the requirement for additional information is a BFOR requires Canada Post to demonstrate that it was reasonably necessary to accomplish the goals set out in step one. To do this, Canada Post must establish that it could not accommodate Ms. Lipp without experiencing undue hardship. [80] Ms. Lipp argued that Canada Post had all the information it needed to establish that she could safely work full-time on modified duties. She argued that it would not, therefore, have created undue hardship to Canada Post to accommodate her in the position without the information from the AMI and the IME. [81] Canada Post argued that it had an obligation to ensure that Ms. Lipp's health and safety would not be jeopardized by working past her restrictions. It further argued that the health and safety risks created by allowing Ms. Lipp to remain in the full-time position without this information would create undue hardship to Canada Post. I agree with this argument for the following reasons. [82] Section 124 of the Canada Labour Code establishes that employers have an obligation to ensure that the health and safety at work of every person employed by them is protected (R.S.C., 1985, c. L-2, s. 124). The case law further indicates that when transferring an employee to another position, an employer is not only entitled to, but is also obliged to obtain reasonably complete medical information about the employee's condition to ensure that the employee can safely perform the functions of the position (Metropolitan Toronto (Municipality) and C.U.P.E., Loc. 43, Re (1991), 22 L.A.C. (4th) 216; Belliveau v. Steel Co. of Canada [1988] O.H.R.B.I.D. No. 11 (Q.L.) at para. 51; Mazuelos v. Clark 2000 BCHRT 1 at para. 46). [83] Where the employee is seeking modified work, he or she has a corresponding duty to cooperate by providing the required information (Canada Post Corp. and Canadian Union of Postal Workers (Reniak Grievance) (1998), 73 L.A.C. (4th) 15). To the extent that the medical information provided by the employee is inadequate for the purposes of ensuring the employee's health or safety, an employer has the right to make further inquiries. [84] The evidence in this case indicates that the work done by postal clerks can be physically demanding and repetitive. Mr. Hippe also testified that more is demanded of full-time postal clerks; they work longer hours than the part-time clerks and are expected to move through a greater range of duties. Mr. Slater explained that Canada Post rotated employees through as many different jobs as possible in mail processing to ensure that all employees had a good range of duties in order to avoid problems with repetitive strain. He testified that repetitive strain injuries at Canada Post were a concern. [85] Ms. Lipp testified that her injuries involved rotator cuff problems, fibromyalgia, and cervical spine degeneration. Mr. Slater stated that, based on Ms. Lipp's medical conditions, there was a concern that going beyond six hours on a long-term basis would subvert the 6 hour restriction and put Ms. Lipp at risk. The fact that she had worked for 6 months in the full-time position did not alleviate his concerns about the long term impact of working full-time on Ms. Lipp. If Ms. Lipp were to injure herself on the job as a result of working beyond her physical capabilities, Canada Post would be responsible for the consequences. [86] Ms. Lipp's own testimony was that when she was working full-time she would become exhausted and run down. Although she testified that she did not take sick leave or leave without pay during the period during which she worked full-time, Mr. Hippe testified that Canada Post was concerned that this could happen. Therefore, Canada Post needed more information about Ms. Lipp's restrictions so that long-term health problems for Ms. Lipp could be avoided. [87] The doctor's note that was initially provided to Canada Post simply stated that Ms. Lipp could go to full-time (8 hour) shifts on light duties. Mr. Hippe testified that it did not explain what factors had changed to allow Ms. Lipp to safely increase her hours to full-time. Canada Post had concerns about what light duties meant and whether Ms. Lipp could be asked to work beyond 8 hours a day as sometimes happened with full-time employees. In view of these concerns, Ms. Lipp was asked to have her physician complete an AMI questionnaire. [88] The doctor's responses to the questions in the AMI were not particularly helpful. When asked what factors had changed to allow Ms. Lipp to increase her hours of work to eight hours, Dr. Chooi replied that Ms. Lipp needed to work full-time in order to get enough pay to cope with her financial situation. She was widowed and had difficulty in looking after herself. The doctor's statement that Ms. Lipp needed to work full-time did not respond to the question about what changes had occurred in her physical condition from March 2000, to October 2000, to enable her to work past the 6 hour restriction that had been set in March of 2000. [89] On the basis of Dr. Chooi's answers, Medisys provided Canada Post with a Field Report in September 2000, which suggested that an IME might provide the objective information that was needed to answer this and other questions about Ms. Lipp's restrictions. [90] Given the nature of the work that is done by postal clerks and the nature of Ms. Lipp's medical conditions and recently established restrictions, I am satisfied that Canada Post had a legitimate concern about safely accommodating Ms. Lipp in the full-time postal clerk position on a long-term basis. The information provided by Ms. Lipp's physician in the note and the AMI did not address Canada Post's concerns. Canada Post had an obligation to ensure that Ms. Lipp was not being placed in a situation where she might injure herself. [91] Were there alternatives to the IME that could have been used to obtain the information that Canada Post needed to ensure that Ms. Lipp's health and safety was protected? Mr. Hippe and Mr. Slater testified that the process for obtaining medical information is as follows: a doctor's note is provided by the employee; if more information is needed regarding an employee's restrictions, the employee is asked to have his or her doctor complete an OFA; if that information is incomplete or unsatisfactory, the same physician is asked to complete an AMI, which is a series of questions regarding the employee's specific medical condition and limitations; if the information in the AMI does not provide the kind of clear and objective information that is needed to properly accommodate the employee, an IME is requested. Mr. Hippe testified that, as far as he knew once an AMI and an OFA had been provided, the IME was the only remaining means of obtaining objective medical information when the information provided by the employee's doctor was inadequate. [92] I accept that during this first time period, Canada Post, together with Medisys, first explored and exhausted all possible means, other than an IME, to obtain the information that was needed to fulfill Canada Post's statutory obligation to protect Ms. Lipp's health. The IME was therefore, the only remaining means of obtaining the necessary information. [93] Accordingly, I find that Canada Post has established that waiving the requirement for an IME would have caused it undue hardship: it would have deprived Canada Post of the only remaining means at its disposal of ensuring that it was fulfilling its obligation to protect Ms. Lipp's health and safety. (5) The Tribunal's Conclusion Regarding Allegation Number Two [94] Given the findings above, I conclude that the requirement that Ms. Lipp produce additional medical information and attend the IME in Regina was a bona fide occupational requirement. C. ALLEGATION NUMBER 3 - Canada Post's repeated and negative communications with Ms. Lipp regarding her restrictions and the provision of medical information was discriminatory [95] Ms. Lipp claims that she was subjected to frequent questions and comments about her limitations on the shop floor and unusually intense supervision of her work. She further claims that the Respondent's demands to produce medical documentation and to attend the IME were very often accompanied by threats of disciplinary action should she fail to produce the required information within the stipulated time period. This, she argues constitutes prima facie evidence of adverse differential treatment on the basis of her disability. (1) Is there credible evidence to support this allegation? (a) Questions and Comments Regarding Ms. Lipp's Disability on the Shop Floor [96] Ms. Lipp testified that around the time that she applied for the full-time position in June of 2000, her supervisor approached her on the shop floor, crossed his arms and asked her just what is it you're capable of? What can you do? She said the workers around her stopped and looked at her. She felt humiliated and ashamed. [97] Ms. Lipp testified that Mr. Slater would approach her on a daily basis to discuss her medical restrictions, the need to produce medical information or the need to attend a medical appointment. Sometimes he would ask her whether she had been to the doctor yet. She felt this was inappropriate. [98] She also testified that Mr. Slater would come up to her when she was working by herself and threaten her that a failure to provide medical documents on time would mean disciplinary action. Ms. Lipp testified that Mr. Slater would hand her medical forms on the shop floor. She did not like this as it drew further attention to her disability. [99] Ms. Janice Karchewski, a shop steward at Canada Post, testified on Ms. Lipp's behalf. Ms. Karchewski stated that the question what can you do? was asked of her on the shop floor when she too was on modified duties. She said that, as shop steward, she was aware that this question was quite frequently asked of people who were on modified duties. She stated that it made her and others feel very uncomfortable. [100] Ms. Louise Shoeman also testified on behalf of Ms. Lipp. Ms. Shoeman has been employed at Canada Post for 27 years. She is also a postal clerk and worked on the same floor as Ms. Lipp on Shift Three. Ms. Shoeman testified that she observed the interactions between Ms. Lipp and Mr. Slater. She testified that Mr. Slater was constantly berating and questioning Ms. Lipp about her restrictions. [101] Ms. Shoeman observed a confrontation between the two that began with Mr. Slater watching Ms. Lipp. He then approached Ms. Lipp and began to question her about her ability to do the full range of duties. Ms. Shoeman testified that when Mr. Slater spoke with Ms. Lipp he would lean over and move very close to her. His tone of voice was loud and rough. Ms. Shoeman stated that Ms. Lipp was frequently in tears at the end of her conversations with Mr. Slater. [102] Mr. Jeworski testified that there was a history of conflict between Ms. Lipp and Mr. Slater that related, to some extent, to Ms. Lipp's use of sick leave time in the past. Mr. Jeworski stated that Ms. Lipp was not the only employee who had problems with Mr. Slater's management style. [103] Ms. Lipp testified that in January 2001, while she was working full-time on Shift 3, a full-time position opened up on the midnight shift (Shift 1) in Forward Letters. She bid for it, was transferred to the position and worked there until March 4, 2001, when she was transferred back to Shift 3. Canada Post's reason for transferring Ms. Lipp back to Shift 3 was that her restrictions could not be accommodated on Shift 1. [104] Ms. Lipp testified that when she arrived for her first shift back on Shift 3, on March 4, 2001, she discovered that her co-workers had been informed, prior to her return, that she was coming back and that it was because of her disability. She stated that she felt humiliated and singled out for different treatment because she was disabled. (b) Close Supervision [105] Ms. Lipp testified that she felt she was more closely supervised than other employees. She described an incident where she saw Mr. Slater look at his watch when she went to the washroom and then check it again after she came out of the washroom. Ms. Lipp stated that she felt Mr. Slater was always watching her. Other people noticed this too and would make comments to her about it. Ms. Shoeman was one of the people who observed Mr. Slater watching Ms. Lipp. As indicated above, she testified about this. [106] Ms. Lipp testified that she saw Mr. Slater hide behind pillars and watch her while she was working. (c) Letters from Canada Post [107] Ms. Lipp testified that she felt she was always getting letters from Canada Post about the need for more medical information and that more often than not, these letters were accompanied by threats of discipline. She testified that her perception of these communications was that Canada Post had a problem with her disability and was looking for a way to get rid of her. The communications that were alleged to be problematic were as follows: A letter dated August 14, 2000, from Mr. Slater, indicating that Ms. Lipp had not returned the AMI [108] In this letter, Mr. Slater indicated that the AMI questionnaire regarding Ms. Lipp's ability to work full time, which was to have been returned by August 9, 2000, had not been returned. Mr. Slater stated: It is important that you realize that uncertainty surrounding your medical status may inhibit our ability to accommodate you with your requests for advancement within the Corporation. He stated that: If your decision is to not take the questions to your physician your current status of Permanently Partially disabled is all that we have to work with. (ii) A letter dated November 17, 2000, from Mr. Dale Hippe indicating the IME in Winnipeg had been changed to a later date in Regina [109] Mr. Hippe wrote to Ms. Lipp informing her that she would not be required to attend an IME in Winnipeg. He stated, however, that another examination would be scheduled in Regina in March 2001. Mr. Hippe added that Ms. Lipp's pending promotion to full-time status depended upon obtaining further information about her restrictions. (iii) A letter dated March 26, 2001, from Mr. Slater informing Ms. Lipp that she was required to attend an IME on April 2, 2001 [110] Ms. Lipp testified that one day in March 2001, she was at her work station when her supervisor, Brian Kanciruk, approached her, crossed his arms and stated Enlighten me. Are you going to this doctor's appointment? Ms. Lipp did not know anything about an appointment and told Mr. Kanciruk that when she received the paperwork for the appointment she would let him know. She stated that she was embarrassed because her co-workers overheard the conversation. [111] Ms. Lipp testified that the next day she received a letter from Mr. Slater dated March 26, 2001, stating that she was required to attend an IME on April 2, and that it was evident from her remarks to Mr. Kanciruk that she was considering not attending the appointment. In his letter, Mr. Slater indicated that a failure to report for the examination on April 2, 2001, at 15:00 could result in administrative action up to and including a change in Ms. Lipp's status from a full-time PO4 to that of a part-time PO4. In that letter, Mr. Slater stated that other administrative action affecting accommodation and employment might also be required until another examination could be scheduled. Ms. Lipp was instructed to express her intentions to either attend or not attend immediately. [112] Ms. Lipp testified that she felt very upset by this turn of events. She had not told Mr. Kanciruk that she would not attend the IME. She stated that this was an example of why she refused to speak directly with Canada Post management; she felt that her words were misinterpreted and used against her. She preferred to communicate through the union. (iv) A twenty-four hour Notice of Interview dated April 2, 2001 - The Missed IME Appointment on April 2, 2001. [113] Ms. Lipp testified that she could not make the April 2, 2001, appointment for an IME. She had not been consulted about the date and had made personal plans for that date. She called Keith Jeworski to see if he could arrange to have her appointment switched with another Canada Post employee whom she knew had been scheduled to attend an IME with the same doctor on April 9. She subsequently received a memorandum from Darlene Black, a nurse with Medisys who worked in the Regina Mail Sorting Plant, confirming that her appointment had been changed to April 9. The memorandum was dated March 28, 2001, and was addressed to Mr. Slater with a carbon copy to Ms. Lipp. [114] Ms. Lipp went into work in the afternoon as scheduled on April 2, 2001; her personal plans were for the early part of the day. She testified that her supervisor, Kevin Zimmerman immediately approached her, followed her out onto the work floor, and in a loud voice asked her what she was doing at work. When she replied that she was here to work, Mr. Zimmerman asked her why she was not at her doctor's appointment. Ms. Lipp testified that a little crowd of people had formed around the area and were listening to the conversation. Mr. Zimmerman continued to question her about the appointment. She was very embarrassed, burst into tears and said speak to Keith, talk to Keith. (Keith was Keith Jeworski, the union president.) Ms. Lipp then went to her shop steward, Lindy Freegone, for help. [115] Later that day, Mr. Slater approached her on the shop floor and handed her a notice indicating that she was to attend an interview with management to investigate her failure to attend the IME on April 2, 2001. Disciplinary action was threatened for failure to attend the meeting. [116] Ms. Lipp stated that she was very upset by this event. She could not believe that Canada Post was angry with her for not attending an appointment that had been rescheduled to another date. She left work after her shift and subsequently went on sick leave. (v) A letter from Mr. Slater dated April 3, 2001, indicating that until Ms. Lipp provided medical documentation regarding her sick leave she would be on leave without pay. [117] In this letter, Mr. Slater stated that a fully completed Occupational Fitness Assessment (OFA) was required by April 5, 2001, to support her sick leave. He stated that until this documentation was received, she would be considered to be on leave without pay. An OFA is a form that is filled out by the employee's doctor. It does not provide a medical diagnosis; the OFA simply sets out what the employee's limitations are and the expected duration of the limitations. [118] Ms. Lipp provided the completed OFA by April 5, 2001. (vi) A letter dated June 7, 2001, from Mr. Slater to Ms. Lipp regarding her recent refusal to attend an IME and the requirement that she attend a third IME appointment. [119] On June 7, 2001, Mr. Slater wrote to Ms. Lipp to clarify our position regarding your recent refusal to attend an IME. He stated that Canada Post was making a third attempt to schedule an IME and that she would be required to attend this one. Her attendance was to be confirmed within 48 hours of the receipt of the letter. The concluding paragraph read as follows: This situation has put us in an administrative position that may jeopardize your employment with Canada Post Corporation. Please consider responding to this letter as soon as possible to reduce the possibility of further administrative or disciplinary action. You can contact me at 761-6304 if you have any further questions. [120] Ms. Lipp testified that she was very distraught about this. She had not purposefully missed the appointment on April 2, 2001; she was under the impression that it had been rescheduled. Ms. Lipp testified that she took this letter to mean that if she did not attend the IME appointment on July 30, 2001, which she had rescheduled on her own, she would be fired. However, unbeknownst to her, the third IME appointment, scheduled for July 30, 2001, was cancelled by Medisys in June, 2001. (vii) A letter dated June 8, 2001 from Mr. Dale Hippe, and a letter from Mr. Slater dated June 13, 2001 indicating that Ms. Lipp was required to provide an AMI. [121] Ms. Lipp testified that on or about June 13, 2001, while she was on sick leave, she received a package from Canada Post that contained a sealed envelope and three covering letters. The first letter was from Medisys dated June 8, 2001, informing Ms. Lipp that she was required to have an AMI regarding her current fitness for work completed by her physician by June 26, 2001. The second letter was from Mr. Hippe on the same date. He too informed Ms. Lipp that she was to complete the AMI by June 26th. He said that if she needed any assistance with this she was to contact the Occupational Health Nurse directly. [122] The third letter, dated June 13, 2001, was from Mr. Slater. In his letter, Mr. Slater stated that clarification was required regarding her current absence. She was required to have the AMI completed by June 25, 2001, a day earlier than the authors of the other two letters had required. Mr. Slater added that if Ms. Lipp failed to produce the documentation and an acceptable explanation, disciplinary action up to and including release from Canada Post would follow. [123] A copy of the June 13, 2001 letter from Mr. Slater to Ms. Lipp was sent to Sun Life Insurance Company and another copy was placed on her personal file. When she went on sick leave in April 2001, Ms. Lipp applied for disability benefits from Sun Life. Her application was initially denied, but then about a year and a half later, her appeal of that decision was granted. [124] Ms. Lipp testified that the letter from Mr. Slater and the AMI package intensified the anxiety that she was feeling. She was required to attend an IME in July, and to provide an AMI within 12 days. Within eight days, Mr. Slater had written Ms. Lipp two letters demanding that she have an AMI completed and then that she attend an IME. Disciplinary action up to and including release from Canada Post was threatened for failure to comply. Ms. Lipp testified that she feared that, no matter what she did, she was going to lose her job. [125] Furthermore, it appeared to her that the package from Medisys with the AMI material had been held back from June 8, 2001 until June 13, 2001, so that Mr. Slater could add his cover letter. Not only was the time for complying with the request reduced because of this delay, Mr. Slater had also reduced the deadline himself by one day from the June 26, 2001 deadline that had been provided by Medisys. [126] In July 2001, Keith Jeworski wrote a letter of complaint to Dale Hippe about Mr. Slater's letter. He objected to the fact that the AMI package from Medisys was channeled through Canada Post management in order to permit Mr. Slater to include a covering letter. Mr. Jeworski stated that this not only violated Ms. Lipp's confidentiality, it also shortened the amount of time that she had to respond. More importantly, it included threats of discipline and release from Canada Post. Mr. Jeworski stated: This seems to be a departure from management's usual procedure for seeking completion of a medical questionnaire. It further reinforces Ms. Culic's belief that Mr. Slater is acting on a personal animus. Mr. Jeworski requested that the threatening letter of June 13 be removed from Ms. Lipp's personal file and that steps be taken to ensure that this did not happen in the future. [127] Mr. Jeworski testified that if an employee refuses to provide medical information through an AMI that would open up the possibility of a demand for an IME or other kinds of administrative action. However, failure to complete an AMI could not involve disciplinary action. There was no basis in the collective agreement or arbitral jurisprudence for this whatsoever. Therefore, he felt that Mr. Slater's letter was improper. [128] The AMI was completed on June 15, 2001, and received by Medisys on June 22, 2001. The AMI indicated that Ms. Lipp was suffering from major depression and anxiety disorder which were related to the conflict she was experiencing at work. Ms. Lipp's physician indicated that a change of workplace or shift would hasten her recovery. [129] In the Medisys Field Report summarizing the results of the AMI, Dr. Koz stated that Ms. Lipp was unfit for work at the present time. She further stated: ... we need to deal with the issues at hand which appear to have a large basis in the workplace as soon as possible. Failure to do so may result in a period of prolonged disability for Ms. Culic. (2) The Tribunal's Findings and Conclusion Regarding the Prima Facie Case for Allegation # 3 [130] Overall, I find that the Complainant has established a prima facie case of adverse differential treatment with respect to this allegation. However, there are some aspects of the allegation which are not substantiated. Ms. Lipp's testimony seemed, at times, somewhat exaggerated and implausible. For example, her statements that Mr. Slater questioned her on a daily basis about her disability or her medical requirements and that he hid behind pillars to watch her work strained the limits of credulity. Furthermore, while it may be true that Mr. Slater timed her washroom breaks, I find no evidence of a link between such conduct and Ms. Lipp's disability, nor have I heard any evidence that Ms. Lipp was treated differently in that regard from other non-disabled employees. [131] I find however, that there is credible evidence to establish a prima facie case that Canada Post management subjected Ms. Lipp to frequent, aggressive and negative questions and commentary on the shop floor regarding her disability and the need to provide further medical documentation or to attend appointments. Ms. Lipp's testimony in that regard was corroborated by Ms. Karchewski's testimony. I find that Ms. Karchewski's statements regarding the questions on the shop floor were convincing because she spoke from personal experience as well as from her experience as a shop steward. She spoke about the fact that she and others were frequently asked what can you do? by Canada Post management while they were on modified duties. [132] Mr. Jeworski's testimony lent some support to that of Ms. Lipp. He indicated that there was a history of conflict between Ms. Lipp and Mr. Slater and that this conflict had continued into the present time. Ms. Shoeman gave credible evidence about the negative interaction between Ms. Lipp and Mr. Slater relating to Ms. Lipp's limitations. [133] Thus, I find that there is credible evidence to establish a prima facie case that Canada Post's questioning and demands regarding Ms. Lipp's disability and the requirement to produce medical documentation were often done in an aggressive and disrespectful manner and often in public. As a result, Ms. Lipp felt singled out for negative treatment on the basis of her disability. Some of the evidence indicates that a significant cause of Ms. Lipp's depression and anxiety was the negative treatment that she received from Canada Post regarding her physical limitations and the requirement for further medical information. [134] Similarly, with respect to Canada Post's other communications, and in particular the letters from Mr. Slater to Ms. Lipp, the Complainant has established a prima facie case that Canada Post focused an inordinate amount of negative attention on Ms. Lipp with regard to her disability and the requirements surrounding that condition. The demands to provide medical information, respond to questions and to attend appointments were peremptory and almost constantly threatened negative employment consequences for failure to comply. The nexus with her disabled status was always evident insofar as the questioning and demands for information related to medical information, appointments or accommodation of her disability. To the extent that they were purported notices of misconduct or insubordination, they almost certainly served to undermine Ms. Lipp's sense of job security. [135] Accordingly, with regard to allegation three, I find that a prima facie case of adverse differential treatment on the basis of disability has been established. (3) Does Canada Post have a reasonable explanation for its otherwise discriminatory practice? [136] Canada Post essentially provided three responses to the prima facie case regarding this allegation: (a) it denied that Ms. Lipp was as frequently and as negatively questioned on the shop floor as alleged, or that confrontations occurred over the requirement for medical information and appointments; (b) it alleged that the communications by letter with Ms. Lipp and discussions with her on the shop floor, to the extent that they did occur, did not constitute adverse differential treatment on the basis of disability, but rather were necessary actions taken by Canada Post to deal with an uncooperative employee; and, (c) the close proximity of demands for information in June 2001, was the result of a breakdown in communication with Medisys [137] For the following reasons, I find that the evidence does not support the Respondent's explanations with regard to the third allegation. (a) The Denial of Frequent and Negative Questioning on the Shop Floor Regarding Ms. Lipp's Disability [138] The evidence does not support Canada Post's denial of the frequent and negative questioning of Ms. Lipp on the shop floor regarding her disability. On the contrary, the evidence strongly supports Ms. Lipp's position. [139] The evidence indicates that Mr. Slater was actively involved in managing Ms. Lipp's case. Mr. Slater himself testified that during 2000 and 2001, he was more actively involved in the management of the files of workers who were on modified duties than at the present time. [140] The evidence also establishes that Canada Post supervisors and Mr. Slater had regular occasion to question employees about their restrictions on the shop floor. Mr. Slater's own testimony was that some supervisors may have told workers on the shop floor that, due to one employee's restrictions, another employee was going to have to cover some of their work. [141] Mr. Slater stated that he spoke with Ms. Lipp from time to time about various issues including the need to provide medical information. He described Ms. Lipp as being defensive at times, but he denied that he had ever seen her in tears. He stated that he did not recall any confrontations with Ms. Lipp about her restrictions and the requirements to produce medical information. [142] In contrast, Ms. Lipp and Ms. Shoeman clearly recalled confrontations regarding Ms. Lipp's restrictions and the requirement to produce medical information. They testified that Mr. Slater spoke in a very loud and angry voice to Ms. Lipp. Ms. Lipp testified that these confrontations occurred on a regular basis. Ms. Shoeman witnessed one such confrontation and felt she had to intervene because it had become so hostile. [143] Mr. Slater's poor recall about the events meant that he was unable to provide evidence to rebut the prima facie case presented by the Complainant on this point. Similarly, Mr. Hippe did not present any evidence that rebutted the evidence presented on behalf of the Complainant. Therefore, I find that Ms. Lipp was frequently and negatively questioned and confronted by Canada Post management on the shop floor about her disability, her restrictions and the requirement to provide medical information. (b) Lack of Cooperation from Ms. Lipp [144] Canada Post argued that the letters to Ms. Lipp, discussions on the shop floor and threats of discipline did not constitute adverse differential treatment based on Ms. Lipp's disability, but rather were non-discriminatory actions taken to deal with a particularly uncooperative employee. Is there any evidence to support that contention? [145] I have carefully examined the evidence on this point and have come to the conclusion, for the following reasons, that while Ms. Lipp was not always as cooperative with Canada Post as she should have been, her deficiencies in that regard do not explain the frequency and intensely negative nature of Canada Post's communication with her. [146] The evidence indicates that Ms. Lipp did take some time to respond to the first request for an AMI. It was sent out by Medisys on July 21, 2000. Ms. Lipp testified that she did not understand why the request was being made given that she had provided a doctor's note indicating that she was fit to work 8 hour shifts and also that she had worked eight hour shifts prior to applying for the full-time position in June of 2000. For that reason, she formulated a letter to Mr. Slater dated August 21, 2000 asking him a number of questions. [147] Mr. Slater testified that he did not receive this letter. In any event, Ms. Lipp finally attended her physician's office, and had the AMI completed and returned to Medisys by September 8, 2000. This was approximately a month and a half after the request was sent to her. I can understand that from Canada Post's perspective, it would appear that Ms. Lipp was not cooperating fully with them at this point in time. [148] However, during the period from September 8, 2000, until Ms. Lipp requested a return to work after her sick leave in the Fall of 2001, I see little evidence of a refusal to cooperate with Canada Post's requests for further information regarding her disability. Moreover, Mr. Jeworski and Ms. Lipp both testified that neither of them had ever taken the position with Canada Post that Ms. Lipp would not attend an IME. [149] It is true that Ms. Lipp and the union raised concerns when Ms. Lipp was informed on October 18, 2000, that she would be required to attend an IME in Winnipeg on November 27, 2000. Ms. Lipp and the union told Canada Post that it would be difficult for Ms. Lipp to attend the IME in Winnipeg because, among other reasons, Ms. Lipp had trouble traveling. Mr. Hippe reconsidered the requirement of an IME in Winnipeg, and on November 17, 2000, he indicated that it would be rescheduled in Regina. [150] I do not consider this to be a refusal to cooperate. Ms. Lipp and the Union raised concerns which Canada Post accepted as sufficiently legitimate to warrant a change in the location for the IME. [151] Subsequently, Ms. Lipp learned, through her supervisor, Mr. Brian Kanciruk, that she had been scheduled to attend an IME in Regina. Ms. Lipp's evidence of that encounter was uncontradicted. She testified that Mr. Kanciruk questioned her in a derogatory way about her intention to attend an IME in Winnipeg. Ms. Lipp stated that she had not received the paperwork yet and would let Canada Post know once she had. Ms. Lipp's testimony regarding this event was not challenged by any evidence to the contrary. [152] Therefore, Mr. Slater's letter of March 26, 2000, in which he stated that it was apparent that Ms. Lipp was considering not attending the IME reflects an inaccurate portrayal of the situation. Ms. Lipp had not refused to attend the IME; she had indicated that she would consider the matter once she had received the paper work. [153] As it turned out, through no fault of her own, Ms. Lipp failed to attend the IME that had been rescheduled in Regina for April 2, 2001. She had attempted, through her union, to have the appointment switched with another employee because the date conflicted with personal plans she had made. Canada Post did not consult with her before setting the date. Therefore, I do not think it could reasonably be said that Ms. Lipp's attempts to switch her appointment with another employee constituted a refusal to cooperate. [154] Mr. Jeworski candidly admitted that he had made a mistake in trying to arrange for the switch. It would appear that Canada Post was under the impression that Ms. Lipp would attend the appointment on April 2, 2001, while Ms. Lipp thought she was to attend on April 9, 2001. Mr. Jeworski spoke with Canada Post to indicate that it was his mistake and that Ms. Lipp was not to blame. [155] However, in his letter of June 7, 2006, Mr. Slater characterized Ms. Lipp's non-attendance at the previous two scheduled IME's as refusals to attend. He then threatened dismissal if Ms. Lipp failed to attend a third scheduled IME on July 30, 2000. Ms. Lipp attended this appointment only to find that it had been cancelled without notice to her. [156] On April 3, 2001, the day after Ms. Lipp went on sick leave, Mr. Slater wrote to Ms. Lipp indicating that she was required to produce a fully completed OFA form by April 5, 2001, or she would be considered on leave without pay. Mr. Slater testified that this kind of letter is not sent out to every employee who calls in sick. He stated that he could not explain why the letter was sent out, but that it was possibly because Canada Post was having trouble getting documentation back from this employee. Ms. Lipp provided the required documentation on April 5, 2001. [157] My view of the evidence is that although Ms. Lipp was initially slow to cooperate with the request for an AMI in the fall of 2000, she subsequently complied with Canada Post's continued requests for information and attendance at appointments. It is true that she told Canada Post that she did not want to travel to Winnipeg for an IME. Her reasons for this were not frivolous, however. Moreover, Canada Post accepted them in agreeing to schedule the IME in Regina. [158] Mr. Hippe's evidence strongly suggests that in fact, it was Ms. Lipp's inability to perform the full functions of her position that was a significant factor in Canada Post's negative conduct towards her. Mr. Hippe testified that Canada Post had always had difficulty with Ms. Lipp's inability to sort oversize mail. It was hoped that this restriction would change and therefore, Canada Post continuously sought information about her restrictions. Mr. Hippe quickly qualified his answer to indicate that continuously meant on a regular basis and that it was perhaps too strong to say that Canada Post had difficulty with the restriction. I found Mr. Hippe's statements and his obvious realization of the implications of those statements to be revealing. They strongly suggested that Canada Post's conduct was, to a large extent, motivated by an unwillingness to accept all of Ms. Lipp's physical restrictions. (c) A Breakdown in Communication with Medisys [159] Mr. Slater testified that the issuance of two requests for information, one on June 7, 2001, ordering that she attend an IME on July 30, 2001, and another on June 13, 2001, requesting that she provide an AMI should not have happened. Both letters threatened disciplinary action for failure to comply and both were written by Mr. Slater. [160] When asked why he had done this, Mr. Slater admitted that it was odd that we're asking for an IME and an AMI at the same time or very close to the same time. He stated that Canada Post had obviously not communicated with Medisys about this because if it had, one of the two requests for more information would not have happened. He stated that better communication might have avoided the problem. [161] The fact remains, however, that it was Mr. Slater who drafted both letters regarding the requirement to attend the IME and the requirement to complete the AMI within days of each other. He issued the warning about disciplinary action. It can be inferred, therefore, that he knew that both requirements were being demanded. Any breakdown in communication with Medisys could easily have been remedied by a call to Medisys. For that reason, Mr. Slater's explanation that the issuance of two threatening letters within 6 days of each other was due to a communication breakdown with Medisys does not seem reasonable to me. (d) Other Unexplained Communications with Ms. Lipp [162] I find that there were other events for which Canada Post has failed to provide a reasonable explanation. For example, when Ms. Lipp did not attend the IME in Regina on April 2, 2001, Mr. Slater issued a 24 Hour Notice of Interview requesting her attendance to discuss and investigate why she did not attend the IME as requested. A warning was given that failure to attend that meeting could result in separate disciplinary action being taken. [163] Mr. Slater testified that there would never be any such discipline. Canada Post had never disciplined anyone for not attending an interview. He admitted that the warning should be taken out of the notice and that the forms are not used anymore. [164] When asked why he sent a copy of the June 12 letter to Sun Life, Mr. Slater stated that he may have been aware that an application had been made for disability benefits. It was not usual to send a letter such as this to Sun Life unless there was a request to do so. He stated that he has never received a request for such information. Therefore, he could not explain why he sent in the letter. (4) The Tribunal's Conclusion Regarding Allegation Number Three [165] I conclude, on the basis of this evidence that Canada Post has not provided a reasonable explanation to rebut the prima facie case raised by Ms. Lipp that Canada Post's conduct during the first period constituted adverse differential treatment on the basis of her disability. I do not accept Canada Post's assertion that the threats of discipline and frequent reminders about medical information were based entirely on the fact that Ms. Lipp was dilatory in providing information. Rather, I find that an important factor in the adverse differential treatment of Ms. Lipp was that Canada Post was having difficulty accepting the restrictions in her work functions arising from her disability. [166] I accept that Canada Post needs to regularly solicit information from employees who have work limitations about the extent of their limitations and whether there have been any changes to those limitations that would affect their accommodation or allow for a more productive work effort. However, there is an important limit to observe here. The requests for information must be reasonable; they cannot be threatening, or so frequent that the burden on the employee becomes onerous. [167] Repeated threats of discipline and discharge for failure to provide information about a disability that are not based on valid concerns about cooperation constitute adverse differentiation on the basis of disability, in my view. Similarly, frequent and unjustified questions and discussions with a disabled employee about her restrictions and the need to provide medical information constitute adverse differentiation on the basis of disability. They impose a burden on the disabled employee that is not imposed on non-disabled employees. [168] Accordingly, I find that Canada Post engaged in prima facie discriminatory conduct in respect of which it was unable to provide a reasonable explanation. VII. THE SECOND TIME PERIOD - MS. LIPP ASKS TO RETURN TO WORK A. ALLEGATION NUMBER 4 - The refusal to permit Ms. Lipp to return to work until she had attended the IME's in Winnipeg was discriminatory Overview [169] In September 2001, Ms. Lipp called Canada Post to say that she was fit to return to work from sick leave. She provided a doctor's note and an Occupational Fitness Assessment attesting to her fitness to return to work on October 9, 2001. Thereafter she alleged that she was subjected to the same kind of treatment and requests for information that she underwent during the first time period, culminating in the requirement that she attend two IME's in Winnipeg. Ms. Lipp alleged that Canada Post's treatment of her during the second time period and the requirement that she attend the IME's constituted adverse differential treatment on the basis of her disability (including her psychological condition) and her sex (she was pregnant at the time the requirement of the IME was imposed). (1) Is there credible evidence to support this allegation? [170] Ms. Lipp testified that she found out that she was pregnant on or about July 14, 2001. She testified that toward the end of the summer she felt that she would be able to return to work. She also testified that she needed to return to work. Her claim for disability insurance had been denied (although this decision was subsequently overturned on appeal and she was awarded the benefits retroactively). [171] Ms. Lipp stated that she calculated the number of weeks that she would have to work at a full-time rate in order to qualify for maternity benefits under the Employment Insurance Act and then determined when she should return to work. [172] Ms. Lipp testified that on September 18, 2001, she telephoned Canada Post and advised them that she intended to return to work on October 9, 2001. Ms. Lipp was told that before she would be permitted to return to work, Canada Post required additional information that Ms. Lipp was fit to return. She first provided a note from her physician dated October 10, 2001, indicating that her anxiety and depression had cleared up and that she was fit to do her duty - short and long modified duties. (Short and long refers to the sortation of short and long sized letter mail.) [173] Ms. Lipp also had an OFA completed by her physician on the same date. It indicated that her depression and anxiety had cleared up. In addition, Ms. Lipp's physician indicated that her physical capabilities were restricted to lifting and carrying 9 kgs. of weight from floor to waist level, lifting and carrying 2 kgs. of weight from waist to shoulder height, and an inability to lift or carry above shoulder level. [174] Finally, Ms. Lipp had her physician complete an AMI. She testified that she did not have the AMI completed when asked because she thought that all that should be required of her was what had been done in the past - a doctor's note and an OFA. [175] The AMI dated October 29, 2001, indicated that Ms. Lipp still had an anxiety disorder, but that it was well controlled. Ms. Lipp was no longer on medication but she was using natural stress control. In the AMI, Dr. Van Heerden stated that he no longer thought that a change in work was required. He stated: Patient feels that she will be able to cope. He stated that the conflict with her boss was still an issue, but that Ms. Lipp had been advised by her union that there would be no problem if the correct communication lines were followed. [176] In the AMI, Dr. Van Heerden stated that, with respect to Ms. Lipp's physical restrictions, she could not lift heavy objects above shoulder height. No other restrictions were outlined and the doctor indicated that Ms. Lipp should be able to sort light letter mail. Dr. Van Heerden prefaced his remarks about Ms. Lipp's physical restrictions by indicating that he was not the treating physician for Ms. Lipp's shoulder injury or chronic rotator cuff condition. [177] In her Field Report of October 30, 2001, Dr. Koz stated that the physical restrictions outlined by Dr. Van Heerden in the AMI were not consistent with the restrictions in the OFA that this same doctor had produced just 20 days earlier on October 10, 2001. Dr. Koz stated that she would have difficulty supporting the physical restrictions and limitations provided by Dr. Van Heerden in the AMI until the discrepancy was clarified. [178] Mr. Hippe testified that he thought that the discrepancy to which Dr. Koz was referring in the Field Report was that in the OFA, Dr. Van Heerden had set out significant restrictions with regard to Ms. Lipp's physical capacity. However, in the AMI which was completed just 20 days after the OFA, Dr. Van Heerden simply stated that Ms. Lipp could not lift heavy objects over her shoulder and there were otherwise no restrictions. Mr. Hippe stated that if the AMI were taken at face value, this would mean that Ms. Lipp could be doing a greater rotation of duties. [179] Thus, it would appear that when Dr. Koz stated in the Field Report that she would have difficulty supporting the restrictions outlined in the AMI, what she meant was that she was not willing to countenance an increase in Ms. Lipp's range of duties on the basis of what had been written in the AMI. Further clarification was needed before that could be done. [180] Dr. Koz therefore recommended a meeting with Mr. Hippe and Canada Post superintendents to discuss the case and to select a mechanism to clarify the discrepancy. There was no indication of what was meant by a mechanism. The Field Report did not indicate that there were any uncertainties with respect to Ms. Lipp's psychological condition. [181] Canada Post then requested that Ms. Lipp attend a meeting on November 8, 2001, to discuss the Field Report. Ms. Lipp testified that Mr. Hippe, Mr. Slater, Ms. Karchewski, Mr. Jeworski and Ms. Darlene Black, a nurse from Medisys, were present at the meeting on November 8, 2001. She stated that Mr. Hippe led off the meeting by telling her that he wanted her to attend an IME appointment in Winnipeg. He stated that Canada Post would fly her there or send her by bus and that she could take a shop steward with her. Ms. Lipp replied that she was not a flyer and she didn't want to drive that far when she was pregnant. As well, she still had trouble with highway travel because of her husband's death on the highway. [182] She testified that she told Mr. Hippe that her doctor had advised her not to travel because of the trouble she was having with uterine cramping. There was a family history of miscarriage; she didn't want to jeopardize her pregnancy. [183] Ms. Lipp testified that she asked if she could avoid the IME in Winnipeg by rescheduling the appointment with Dr. Fink in Regina for a date before November 23rd. Ms. Lipp testified that Mr. Hippe's response was that he did not see a problem with that. The Medisys nurse, Darlene Black, indicated however, that she did not think it would be possible to reschedule the appointment within such a short period of time. [184] Ms. Karchewski, the shop steward, was present at this meeting. Her testimony about the meeting confirmed that of Ms. Lipp. [185] Mr. Jeworski, who was also present at this meeting, testified that Ms. Lipp expressed her concern about going to Winnipeg because she was pregnant and that she had had difficulty with her pregnancy. He testified that Canada Post proposed a number of options to deal with Ms. Lipp's fear of traveling. But Ms. Lipp expressed another concern with regard to a conflict with an appointment with her gynecologist on the date of the IME. Mr. Jeworski testified that Canada Post was looking for confirmation from Ms. Lipp that she would attend the IME in Winnipeg. Although the option of attending an IME in Regina with Dr. Fink was discussed, no commitment was made by Canada Post to this option. Management did indicate that the proposal would be considered. Ms. Lipp indicated that she would consider the possibility of the IME in Winnipeg. [186] On or about November 15, 2001, Ms. Lipp received a letter from Darlene Black from Medisys indicating that as per the discussion held on November 8, 2001, Independent Medical Examinations have been arranged for you in Winnipeg with the following itinerary. The letter then indicated the time and place for two IME's in Winnipeg. Ms. Lipp testified that this was the first that she had heard that there was to be two IME's. It was not clear from the evidence exactly how Ms. Lipp determined that one of the two appointments was with a psychiatrist, but that information was somehow conveyed to Ms. Lipp after she received the letter from Darlene Black. [187] Ms. Lipp testified that she was puzzled by the letter because, contrary to what Ms. Black stated in the letter, there had been no discussion during the November 8th meeting about the need for two IME's. The discussion about the IME on November 8, 2001 related to her physical restrictions, not her psychological state. [188] Mr. Jeworski also testified that he was surprised to learn that Ms. Lipp would be required to attend an IME with a psychiatrist in Winnipeg as well as an occupational specialist before she could return to work. He stated that there had been no indication at the November 8 meeting that there would be an appointment with a psychiatrist in Winnipeg. [189] Meanwhile, Ms. Lipp successfully rescheduled the appointment with Dr. Fink, the occupational physician, for November 16, 2001. She called Keith Jeworski and let him know this. Based on the discussions with Canada Post and Medisys during the meeting on November 8th, Ms. Lipp thought the appointment with Dr. Fink would obviate the need to travel to Winnipeg to see an occupational specialist. [190] Mary Lou Woodfield, the second vice-president of the CUPW local, testified that she had a good rapport with Mr. Hippe and thought that she might be able to resolve the issue of the IME's. She stated that she met with Mr. Hippe and asked him whether he would consider bringing the doctors from Winnipeg to do the IME's. Mr. Hippe told Ms. Woodfield that he was not going to pay for the cost of a doctor to come to Regina. He said that he would not go there. [191] Ms. Lipp testified that she attended the appointment with Dr. Fink on November 16, 2001, thinking that this would result in the cancellation of at least one of the IME's in Winnipeg. Dr. Fink was a physician that Canada Post had used before for IME's. She had no reason to believe that he would not be acceptable to the company now. [192] Ms. Lipp also attended an appointment with her physician on November 16, 2001. He wrote a note stating: She is currently 23 week pregnant is experiencing some uterine cramping. We would thus prefer that you get another doctor and psychologist closer to home so that she does not have to travel that far. She has a fear of flying which has been accentuated by the recent events. Dr. J. Alton is an occupational physician who might be able to help. [193] Ms. Lipp testified that this note was provided to Canada Post. [194] Ms. Lipp testified that she received a letter from Mr. Slater dated November 18, 2001, indicating that if she did not attend the IME appointments in Winnipeg, she would be placed on disciplinary leave without pay. She testified that she did not attend the appointments because she was not willing to put her baby in jeopardy. [195] On December 5, 2001, Ms. Lipp received notification that Canada Post had put her on disciplinary leave without pay. Mr. Slater also indicated in this letter that if Ms. Lipp's pregnancy did not enable her to attend the IME then she was required to supply documentation to that effect immediately. Alternate arrangements for the IME would then be made after her pregnancy. [196] In a letter dated December 6, 2001, George Britton, Secretary-Treasurer of the Regina Local of CUPW, wrote to Mr. Slater stating that Ms. Lipp was willing to attend the IME's and had, in fact, attended an IME with Dr. Fink on November 16, 2001. Mr. Slater responded to Mr. Britton's letter on January 1, 2002, stating that Dr. Fink's IME could not be used since Ms. Lipp's physician made the referral, not Canada Post. Therefore, his examination could not truly be considered an independent medical examination. (2) The Tribunal's Conclusion Regarding the Prima Facie Case for Allegation Number 4 [197] I find that the Complainant has established a prima facie case of adverse differential treatment with respect to the refusal to return Ms. Lipp to the workplace without first attending the IME's in Winnipeg. Ms. Lipp produced a doctor's note and an OFA indicating that she was fit to return to work on October 9, 2001. She then produced an AMI that was reviewed by Medisys. The AMI suggested that Ms. Lipp might have fewer physical restrictions than her doctor had stated in the previous OFA. However, Medisys's physician was not willing to support such a conclusion until the discrepancy between the OFA and the AMI had been clarified. There was nothing in the Field Report to suggest that Ms. Lipp should not be permitted to return to work. [198] Nonetheless, Canada Post demanded that Ms. Lipp attend an IME in Winnipeg before she would be allowed to return to work. At first, it appeared that the IME was only with an occupational specialist in Winnipeg. Ms. Lipp assumed that it was to address the outstanding issues with respect to her long-term fitness to do full-time work. However, there was nothing in any of the medical information provided to Canada Post that would have raised questions about her physical capacity to return to full-time modified work as she had been doing in April of that same year. If anything, the AMI suggested that she might be capable of returning to work with fewer restrictions than in April 2001. [199] It later became apparent that Canada Post had issues with respect to her psychological fitness to work since Ms. Lipp was being sent to see a psychiatrist in Winnipeg also. There was, however, nothing in the Field Report from Dr. Koz that indicated that Ms. Lipp's psychological condition was in issue. It would appear therefore that, notwithstanding the lack of information at Canada Post's disposal indicating that Ms. Lipp continued to suffer from depression and anxiety disorder, Canada Post perceived that her psychological condition was a barrier to her return to work. [200] It is well established that discrimination on the basis of disability encompasses differential treatment on the basis of a perceived disability (Québec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City) [2000] 1 S.C.R. 665; Milazzo v. Autocar Connaisseur Inc. & Motor Coach Canada 2003 CHRT 37 at para's 82-88). I find therefore, that Ms. Lipp established a prima facie case that Canada Post's refusal to permit her to return to work until she had attended the IME's in Winnipeg, constituted adverse differential treatment on the basis of a perceived psychological disability and actual physical disabilities (neck, shoulder and spine problems and fibromyalgia). [201] This however, does not end the analysis with respect to the prima facie case on this allegation. [202] I find that there is also a prima facie case that Canada Post's insistence on the IME's in Winnipeg constituted adverse effect discrimination on the basis of Ms. Lipp's gender. Instead of permitting Ms. Lipp to have the IME done in Regina, as it had previously been willing to do, Canada Post required that Ms. Lipp attend two IME's in Winnipeg before returning to work. Ms. Lipp communicated to Canada Post that she was having difficulties with her pregnancy and did not feel that she could travel; she was concerned about a possible miscarriage. She obtained a note from her doctor dated November 16, 2001, indicating a preference that she not travel due to the uterine cramping she was experiencing. The doctor provided the name of another physician who might perform the IME in Regina. [203] Ms. Lipp stated that this note was provided to Canada Post, although she did not say when or how. Mr. Slater testified that he did not recall receiving this information. However, at the hearing of this case, the note was produced in the Respondent's Book of Documents, not the Complainant's. Therefore, I accept Ms. Lipp's testimony that she provided the note about her pregnancy to Canada Post. I also find that both Ms. Lipp and the union were aware of the importance to Canada Post of providing timely medical information. Therefore, I find that Canada Post was provided with the note around the time that it was written, which was November 16, 2001. [204] On the face of it, the requirement that Ms. Lipp attend an IME in Winnipeg would not appear to be discriminatory. As Mr. Jeworski testified, for many employees, traveling to Winnipeg would not be a problem. However, for Ms. Lipp this requirement was a problem given her concerns and those of her doctor about traveling during her pregnancy. This apparently neutral requirement had the effect of imposing a burden on Ms. Lipp that other employees would not have to bear: it forced Ms. Lipp to choose between her job and potentially putting her pregnancy at risk. Thus, even though the requirement did not single her out as a woman, it had an adverse effect on her on the basis of her gender. For that reason, I find that a prima facie case of discrimination on the basis of gender (pregnancy) has also been established. (3) Has the Respondent provided a Reasonable Explanation? [205] The Respondent argued that it had reasonable grounds to doubt the validity of Ms. Lipp's physician's reports with respect to her psychological fitness. This, it argued, was conclusively determined by the arbitrator whose decision was entered into evidence. Moreover, there was the outstanding issue of Ms. Lipp's capacity to work full-time and, on top of that, the discrepancy between the OFA and the AMI provided by Dr. Van Heerden in October 2001 that required clarification. [206] On the basis of the uncertainty about Ms. Culic's mental and physical health, Canada Post argued that the requirement that she attend the IME's in Winnipeg before she returned to work was a BFOR. Canada Post further argued that there were no doctors in Regina who could perform the IME's. Therefore, Winnipeg it had to be. [207] Finally, Canada Post argued that it had insufficient medical information to establish that Ms. Lipp required accommodation for her pregnancy. Thus, it was argued that Ms. Lipp failed in her duty to cooperate with the accommodation efforts. [208] The Complainant argued that there was no evidence to support the need for further medical information. Moreover, there was no evidence to support the assertion that Canada Post would suffer undue hardship in returning Ms. Lipp to the full-time position. [209] The Complainant and the Respondent have each provided case law that they claim supports their position. The Complainant relied on Code Electric Products Ltd. v. International Brotherhood of Electrical Workers [2005] B.C.A.A.A. No. 14, for the proposition that the safety and health risks must be serious before a requirement to produce medical information before returning to work will be seen as a BFOR. In that case, Arbitrator Burke considered whether the respondent's refusal to return the grievor to his duties as a machine operator without further medical information and a commitment to therapy was discriminatory. The grievor suffered from Bi-Polar disorder as well as cannabis and alcohol abuse problems. He provided equivocal medical evidence about his fitness to return to work. The arbitrator noted that, applying the Meiorin analysis, the requirement in issue in the case was that the grievor must prove his fitness before returning to work followed by successful completion of a course of therapy. [210] The arbitrator found that the first two requirements of the Meiorin test were met. With respect to the question of accommodation to the point of undue hardship, the arbitrator noted the evidence of the doctors who testified in that case. They testified that there was a significant risk of impairment in the grievor's judgment if he were to suffer a psychotic episode. Given that he was working in an industrial enterprise in which he operated a machine that slices metal with a large blade at 30-40 slices a minute, the grievor's medical condition posed a serious risk. The arbitrator stated that this was unlike an office situation where very different issues of safety arise. [211] The arbitrator found that, in light of the uncertainty in the grievor's medical situation, the severity of his condition and the nature of the work site, undue hardship would result should fitness to return to work not be adequately established. [212] The Respondent relies on Brimacombe v. Northland Road Services Ltd. [1998] B.C.H.R.T.D. No. 34 (Q.L.). Brimacombe was a heavy-duty mechanic. He was diagnosed with chronic fatigue syndrome and experienced dizziness, fatigue and unsteadiness on the job. He went off work on sick leave and when he returned, he provided a doctor's note indicating that he could operate equipment such as driving a truck, but could not do manual labour. The note, however, did not explain his illness, capabilities, limitations and the risks of an accident due to his condition. [213] The British Columbia Human Rights Tribunal found that the requirement that the complainant provide a more detailed doctor's note was justified and that returning him to work without it created a significant safety risk. The Tribunal stated that the magnitude of the risk to the complainant and to his fellow workers was considerable. As a heavy-duty mechanic, Mr. Brimacombe worked on and around heavy machines, tractors, plows, graders, etc. To allow Mr. Brimacombe to return to work without a note that better explained his illness and his restrictions would have constituted undue hardship for the Respondent, his fellow employees and, in some circumstances, the general public. Furthermore, the Tribunal held that the employer had no way of properly structuring the job duties without medical information. [214] These cases suggest that the requirement to provide further medical information and/or attend an independent medical examination before being allowed to return to the job will likely constitute a BFOR when the medical evidence available thus far is unclear, and there is a significant risk to the safety and/or health of the employee and others around him or her. Where safety is at issue, both the magnitude of the risk and the identity of those who bear it are relevant considerations (Central Alberta Dairy Pool v. Alberta (Human Rights Comm.) (1990), 12 C.H.R.R. D/417 at para. 63). However, risk cannot be considered an independent justification of discrimination; rather, it is part of the analysis as to whether forgoing the requirement for further medical information would create undue hardship (British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868, at para. 30). [215] The nature of the disability and the workplace conditions are factors that should also be taken into account in assessing whether the requirement for an independent medical examination is a BFOR. Pursuant to s. 15(2) of the Act, the Respondent may also present evidence that the cost of accommodating the Complainant without the medical information constituted undue hardship. (a) Steps One and Two of the Meiorin Analysis: Was the Requirement of the IME's in Winnipeg Rationally Connected to Legitimate Goals and Adopted in Good Faith? [216] I think it makes sense in the context of this allegation to analyze the first two steps of the Meoirin analysis together. [217] The arbitral case law in this area indicates that an employer is entitled to request evidence of medical fitness when an employee returns from an absence due to illness. The requirement for medical information has been found to be necessary in order to ensure the safety and health of the returning employee as well as that of fellow employees and to facilitate the accommodation process (Re Firestone Tire and Rubber Company of Canada Ltd. and United Rubber Workers, Local 113 (1979) 3 L.A.C. (2d) 12; Code Electric Products Ltd, supra, at para. 100 Brimacombe, supra, at para. 83). [218] In my analysis of the first part of these reasons, I found that the requirement of having Ms. Lipp attend an IME in Regina was rationally connected to the goal of ensuring that Canada Post was safely accommodating her in productive work in the full-time postal clerk position. I also found that the requirement to attend an IME in Regina was done in the honest and good faith belief that it was necessary to fulfill those goals. On the same basis, I am prepared to accept that attendance at the two IME's was rationally connected to the goals of ensuring that Ms. Lipp was safely and productively accommodated in the full-time position. [219] The question now is whether the requirement of attendance at two IME's in Winnipeg before returning to work was done in the honest and good faith belief that they were necessary to achieve those goals. [220] Both Mr. Hippe and Mr. Slater testified that Dr. Koz had told them that Ms. Lipp should not be in the workplace until she had provided the results of the IME's. They further testified that Dr. Koz had lost confidence in the IME provider in Regina, Dr. Fink. Mr. Hippe testified that Dr. Koz told him that there were no other doctors in Regina who could perform the IME's. [221] On the basis of that evidence, I am prepared to accept that Canada Post formulated the requirement that Ms. Lipp attend the IME's in Winnipeg before she returned to work in the honest and good faith belief that it was necessary in order to ensure that Ms. Lipp was safely and productively accommodated in the full-time position. [222] As is often the case, the more difficult question for the Respondent to answer is: (b) Was the requirement that Ms. Lipp attend the IME's in Winnipeg reasonably necessary to the goal of ensuring that Ms. Lipp was safely and productively accommodated in her full-time position? [223] At this stage, Canada Post must demonstrate that the requirement of sending Ms. Lipp to Winnipeg for the IME's was reasonably necessary in that it could not have accommodated Ms. Lipp without experiencing undue hardship (Meiorin, supra, at para. 62). Canada Post must demonstrate that it investigated alternatives to sending Ms. Lipp to Winnipeg for the IME's, and that any alternatives considered were rejected only for appropriate reasons (Meiorin, supra, at para. 65; see also, Audet v. CNR 2006 CHRT 25 at para 62). Impressionistic evidence of the cost of accommodating an individual is not acceptable; the respondent must demonstrate in real, concrete terms how the costs associated with accommodation impose undue hardship upon it (Audet, supra, at para 106). [224] To analyze the third part of the BFOR test, I have divided the question into the following components: Was the psychiatric IME necessary? Was the IME with the occupational specialist necessary? Was it reasonably necessary to hold Ms. Lipp out of service until she provided the results of the IME's? Was it reasonably necessary to require that the IME's be held in Winnipeg? (i) Was the psychiatric IME necessary? [225] Ms. Lipp produced a doctor's note indicating that she was fit to return to work. The arbitrator held that Canada Post, through its medical consultant, Dr. Koz, had reasonable grounds to doubt the validity of medical information provided by Dr. Van Heerden with regard to Ms. Lipp's psychological fitness to work. [226] Dr. Koz was not called to testify at the hearing in this case. Mr. Hippe testified that Dr. Koz had told him that Ms. Lipp should not be in the workplace until the results of the IME's were in. However, he could not explain why Dr. Koz was of this view. Therefore, I was not privy to any information that Dr. Koz might have had to suggest that Ms. Lipp continued to suffer from a psychological condition that would have put herself or others around her at risk if she returned to work without first attending a psychiatric IME. The only evidence from Dr. Koz that was before me was the Field Report that she authored, dated October 30, 2001, wherein nothing was mentioned about Ms. Lipp's psychological status. In that report, Dr. Koz did not identify anything in the AMI provided by Dr. Van Heerden that would have caused her to question the doctor's statement that Ms. Lipp was psychologically fit to return to work. [227] Mr. Hippe testified that the main reason that Canada Post questioned the validity of the medical information was that the company had somehow become aware that Ms. Lipp needed to come back to work for financial reasons; her disability benefits from Sun Life had run out. When asked why that would cause him to question whether Ms. Lipp was fit to return to work, Mr. Hippe replied that he thought she might be returning to work because she had to, not because she was able to. He stated that he did not think that her psychological condition had changed. However, I heard no evidence that would have been in Canada Post's possession at the time of her request to return to work, to support that statement. [228] Therefore, I am not convinced, on the evidence that was before me, that it was necessary for Canada Post to require Ms. Lipp to attend a psychiatric IME in order to safely accommodate her in the postal clerk position. Nevertheless, even if I were to find that it was necessary, this would not end the analysis. I would still be required to examine whether Canada Post was justified in holding Ms. Lipp out of service and requiring that she go to Winnipeg for the IME. Therefore, I will proceed with the analysis as though it was necessary for Canada Post to require a psychiatric IME. (ii) Was the IME with an occupational specialist regarding Ms. Lipp's physical restrictions necessary? [229] In addition to the psychiatric IME, Ms. Lipp was required to attend an IME in Winnipeg with an occupational specialist to assess her physical limitations. Both Mr. Hippe and Mr. Slater testified that the requirement for an IME with an occupational specialist was based on the discrepancy between the OFA and the AMI provided by Dr. Van Heerden. Although it was not clear to me, on the evidence, that an IME was necessary to clarify this discrepancy, I am prepared to find that Ms. Lipp's attendance at an IME to clarify her physical restrictions with respect to the full-time postal clerk position continued to be necessary. [230] Mr. Slater testified that this requirement was still an issue for Canada Post following her sick leave. Ms. Lipp had been off work for some time by the fall of 2001, and Canada Post continued to be concerned about her ability to work full-time and the exact nature of her restrictions. Therefore, for the reasons that I provided in the previous part of this decision dealing with the requirement to attend an IME, I find that the IME with an occupational specialist to clarify Ms. Lipp's physical restrictions, continued to be necessary. (iii) Was it reasonably necessary to hold Ms. Lipp out of service until she provided the results of the IME's? [231] Although the requirement to attend IME's with an occupational specialist and a psychiatrist may have been reasonably necessary, the obvious question that arises is whether it was necessary to hold Ms. Lipp out of service until she provided the results of those IME's. Given that prior to her departure on stress leave, Canada Post had been prepared to accommodate Ms. Lipp in the full-time position without first having the results of the IME, Canada Post must now show what factors had changed to justify holding her out of service in the fall of 2001. [232] Mr. Hippe testified that he was told by Dr. Koz that Ms. Lipp should not be in the workplace until she had attended the IME's and provided the results to Dr. Koz. Unfortunately, however, as I noted above, Dr. Koz did not testify. Nor did any one else testify about the safety, health or cost issues that would or might arise if Ms. Lipp were returned to the modified full-time position in which she had worked from October 2000, until April 2001. [233] Therefore, there was no evidence as to why exactly Ms. Lipp should not be in the workplace pending the gathering of further medical information. Did she pose a particular health and safety risk to herself or others around her such that she could not be permitted in the workplace? If so, why was this the case in October of 2001, and not in October of 2000, when Ms. Lipp was transferred to the full-time position notwithstanding the fact that Medisys did not have the results of an IME? These questions were left unanswered during the hearing. The answers to the questions, however, were crucial to a finding as to whether returning Ms. Lipp to her full-time position on modified duties pending the completion of the requisite medical inquiries, would cause undue hardship to Canada Post. [234] There was some suggestion by Mr. Hippe that the fact that the workplace conflict with Mr. Slater had not yet been resolved made it dangerous for Ms. Lipp to return to the workplace. However, in cross-examination, Mr. Hippe admitted that Canada Post did not see this as a barrier to her return to the workplace. He testified that the conflict resolution process would likely have been engaged once Ms. Lipp returned to the workplace. However, although the Field Report of July 10, 2001, written while Ms. Lipp was still on sick leave, indicated that this process should be commenced there was no indication in the Field Report of October 30, 2001, when she wanted to return, that conflict resolution was still needed. [235] In fact, the evidence revealed that Ms. Lipp did not wish to meet with Canada Post upon her return to work to discuss the conflict with Mr. Slater. Instead, through her union she had demanded that Mr. Slater not come within 10 feet of her and that he be required to communicate with Ms. Lipp through the shift supervisor only. [236] Mr. Hippe testified that the operational requirements of the Plant were such that it would create undue hardship for Canada Post to require Mr. Slater to communicate with Ms. Lipp only through the shift supervisor. He testified that if there was an emergency and the shift supervisor was out of the building, Mr. Slater had to be able to communicate with Ms. Lipp. [237] Mr. Jeworski proposed to Canada Post what he thought would be a reasonable solution to the workplace conflict that had resulted in Ms. Lipp's departure on stress leave. He knew that a ten-foot rule was unworkable. Mr. Jeworski testified however, that for the most part, the objectives of conflict resolution and Ms. Lipp's successful return to work could be achieved by simply following the normal chain of command in the Mail Processing Plant. As a normal course of events, most communication on the shop floor flowed through the supervisor to the employee. Superintendents like Mr. Slater only became involved when the supervisor was out of the building or on a break, or when something out of the ordinary occurred. [238] Mr. Jeworski testified that he made a suggestion to Canada Post that he thought represented a reasonable compromise. Ms. Lipp testified that she agreed with the proposal. It was this: Ms. Lipp would be allowed to return to work on the understanding that she would still be required to attend the IME's. Efforts would be made to find doctors who were in or closer to Regina, or Canada Post would wait until after her pregnancy. The normal lines of communication would be followed in the Plant; Mr. Slater would do what he could not to aggravate the situation with Ms. Lipp. [239] Mr. Jeworski thought this plan would work because normally employers are anxious to have employees return to work. Moreover, this was not a radical suggestion; the union was not seeking to have Mr. Slater removed or moved to a different section. Ms. Lipp was not seeking to avoid the IME's. However, Canada Post had drawn a line in the sand and would not accept the proposal. The IME had to come before the re-entry as far as Canada Post was concerned, Mr. Jeworski testified. [240] I find that Mr. Jeworski's proposal was eminently reasonable. Canada Post led no evidence as to why it rejected the proposal. Furthermore, there was no evidence that such a proposal would have caused Canada Post undue hardship. [241] I find, therefore, that Canada Post has failed to establish that the requirement of holding Ms. Lipp out of service pending the gathering of further medical information was reasonably necessary. (iv) Was it reasonably necessary to require that the IME's be held in Winnipeg? [242] On the assumption that the psychiatric IME and that the IME with the occupational specialist were reasonably necessary, the question then is whether it was reasonably necessary to require Ms. Lipp to attend these examinations in Winnipeg. [243] Here again, the Respondent relies on the decision of the arbitrator, who heard and seemed to have accepted the evidence of Dr. Koz that were good reasons for her to have lost confidence in Dr. Fink. Those reasons were not set out in the arbitrator's decision. The arbitrator would then appear to have accepted evidence that there were no specialists in Regina who could perform the IME's. I was urged to accept these findings in lieu of evidence from Dr. Koz on these points and to find, therefore, that Canada Post had no alternatives to sending Ms. Lipp to Winnipeg. [244] I have a number of concerns about this. Firstly, as I indicated in my ruling on the res judicata issue, it appears that the human rights issues were not argued at the arbitration nor considered by the arbitrator in his decision. Moreover, counsel for Ms. Lipp was not present at that hearing; only the union and Canada Post had standing. Therefore, counsel for Ms. Lipp did not have the opportunity to pose questions to Dr. Koz that were based on a human rights analysis of the case. For example, she did not have an opportunity to explore the nature of the hardship was that was alleged to result from having the IME's performed in Regina or the surrounding area. [245] Secondly, there was evidence presented during the hearing in the form of the note from Ms. Lipp's physician indicating that another doctor by the name of Dr. Alport was able to perform at least one of the IME's in Regina. It is not clear from the arbitrator's decision as to whether this evidence was entered at the hearing and put to Dr. Koz. This evidence is, however, relevant to the question of whether there were reasonable alternatives to the requirement of traveling to Winnipeg for the IME regarding Ms. Lipp's physical restrictions. Given that Dr. Koz did not testify at the hearing into the present complaint, there was therefore no opportunity to question Dr. Koz about whether she had considered this and other alternatives. [246] Finally, even if one accepts that there was no one in Regina who could have performed the IME with respect to Ms. Lipp's physical restrictions, the arbitrator's decision does not touch upon any evidence from Dr. Koz regarding the availability of someone in Regina to perform the psychiatric IME. [247] For these reasons, I find that the arbitrator's decision with respect to the necessity of attending the IME's in Winnipeg is not applicable in the present case. Did Canada Post investigate and consider alternatives to sending Ms. Lipp to Winnipeg? [248] Mr. Hippe testified that Dr. Koz had told him that she was not aware of any doctors in Saskatchewan who performed IME's. However, Mr. Hippe also testified that he thought there might be one or two doctors in the province that performed IME's. Moreover, Canada Post was in possession of a note from Dr. Van Heerden dated November 16, 2001, suggesting that a physician by the name of Dr. Alport might be able to perform the physical IME. There was no evidence that Mr. Hippe looked into these possibilities or requested that Dr. Koz make the appropriate inquiries. He testified that because Dr. Koz was from Winnipeg, she had established relationships with doctors in that city who could perform IME's. Mr. Hippe indicated that he accepted Dr. Koz's statement that the IME's should be done in Winnipeg. [249] Similarly, no evidence was provided regarding the efforts that were made to determine the availability of doctors in Regina who might perform the psychiatric IME. Thus, I find that the evidence does not establish that Canada Post seriously investigated or considered the availability of other doctors in Regina or Saskatchewan who might have performed the IME's. Would accommodating Ms. Lipp have imposed undue hardship on Canada Post? [250] Although I have found that several options for Ms. Lipp's accommodation were not considered by Canada Post, s. 15(2) of the Act provides that an employer may nonetheless justify adverse differential treatment of an individual by showing that accommodating the individual's needs would impose undue hardship on it, considering health, safety and cost. [251] The evidence indicated that at one point in time, the union suggested that one way to accommodate Ms. Lipp's travel concerns would be for Canada Post to arrange for the Winnipeg doctors to travel to Regina to meet with Ms. Lipp. Ms. Woodfield testified that Mr. Hippe told her categorically that he was not willing to pay the costs. [252] At the hearing, however, it was incumbent upon Canada Post to establish, by way of evidence that was more than just impressionistic or conjectural, that the cost of flying the specialists in from Winnipeg would cause Canada Post undue hardship. There was no such evidence presented at the hearing. [253] Similarly, in December 2001, the union proposed that Canada Post accept Dr. Fink's IME Report in lieu of an IME report from an occupational specialist in Winnipeg. Canada Post replied that because Ms. Lipp's family physician had referred her to Dr. Fink, the report was no longer considered to be an IME report. Mr. Hippe also testified that Dr. Koz had also lost confidence in Dr. Fink and therefore, his report was not acceptable. However, Mr. Hippe could not say why Dr. Koz had lost confidence in Dr. Fink, and what the implications of accepting the report would have been for Canada Post. [254] Again, in the absence of evidence as to what hardship would result to Canada Post from simply accepting Dr. Fink's recommendations instead of sending Ms. Lipp to Winnipeg, we are left with a number of unanswered questions that are crucial to the determination at this stage of the BFOR test. Would following Dr. Fink's recommendations have led to an unacceptable safety or health risk to Ms. Lipp or her fellow workers? Would it have created costs that were unmanageable for Canada Post? There was simply no evidence whatsoever that addressed these questions. [255] For these reasons, I find that Canada Post has failed to establish that not sending Ms. Lipp to Winnipeg for the IME's would have caused it undue hardship. Did Ms. Lipp refuse a reasonable solution to the accommodation issue? [256] The courts have stated that an employee cannot refuse a reasonable accommodation on the ground that the alternative which he or she favours would not cause the employer undue hardship (Hutchinson v. Canada (Minister of the Environment 2003 FCA 133 at para. 77). Thus, if it can be shown that Ms. Lipp refused a reasonable accommodation that was offered to her by Canada Post, then it is immaterial whether Canada Post demonstrated that the above mentioned alternatives would have caused undue hardship. [257] Canada Post argued that it made considerable effort to accommodate Ms. Lipp's travel concerns. Mr. Hippe testified that he made a number of offers to encourage Ms. Lipp to agree to travel to Winnipeg. For example, she would be paid from November 7, 2001, until she attended the IME's. In addition, various modes of transportation to Winnipeg were offered to her including bus, plane and car travel. She was also permitted to have a union representative attend with her. Finally, there was some suggestion that the expense of having Ms. Lipp's partner attend with her might be provided, although Ms. Lipp testified that she was never informed of this option. [258] Canada Post argued that these efforts to accommodate Ms. Lipp were reasonable and that nothing further was required. I disagree. The options that were offered by Canada Post did not address Ms. Lipp's concerns about travel arising from her pregnancy. [259] Mr. Hippe testified that he was aware that Ms. Lipp had had difficulty with previous pregnancies and that she may have miscarried in the past. He knew that she was concerned about her current pregnancy and did not want to travel as a result. Mr. Hippe testified that he may also have been in possession of some information indicating that Ms. Lipp was experiencing uterine cramping. However, he testified that when he spoke with Dr. Koz, she told him that uterine cramping was a normal part of pregnancy. On the basis of that statement from Dr. Koz, he formulated the opinion that Ms. Lipp should be able to travel to Winnipeg. [260] The Supreme Court of Canada has emphasized the importance of taking into account the individual needs of the person requesting the accommodation (Meiorin, supra, at para. 62). Generalizations about normal pregnancies cannot, therefore, serve as the basis for a decision not to provide an individual with accommodation for her particular needs. While Dr. Koz's opinion was a factor to be considered in assessing Ms. Lipp's need for accommodation, it was only one among a number other factors that should have been taken into account. [261] Ms. Lipp certainly had an obligation to inform Canada Post about the individual circumstances of her pregnancy (Desormeaux v. O.C. Transpo 2003 CHRT 2 at para. 110, aff'd 2005 FCA 311). However, the evidence established that she did so. [262] Moreover, even without taking Ms. Lipp's pregnancy into account, I find that the accommodation offers made by Canada Post were not reasonable. In my view, the requirement that Ms. Lipp travel out of the province for a two-day IME should only have been imposed as a last resort. It was an onerous obligation that Ms. Lipp was required to comply with because she was a disabled worker. Canada Post, therefore, had a duty to thoroughly investigate all possible alternatives prior to sending her to Winnipeg for the IME's. The evidence indicates that Canada Post did not do so. [263] In the light of this evidence, I find accordingly, that the offer of accommodation that was made to Ms. Lipp with regard to travel to Winnipeg was not a reasonable one. (4) Tribunal's Findings and Conclusions Regarding Allegation Number Four [264] For all of the above reasons, I find that Canada Post has failed to establish that the requirement that Ms. Lipp attend two IME's in Winnipeg before returning to work was a bona fide occupational requirement. Therefore, I find that Canada Post's refusal to return Ms. Lipp to work until she had attended the IME's in Winnipeg constituted discrimination on the basis of disability (perceived and actual) and gender. B. ALLEGATION NUMBER 5 - The imposition of disciplinary leave without Pay (1) The Prima Facie Case [265] If Ms. Lipp had not been pregnant and disabled she would not have been placed in a situation where she had to choose between receiving the discipline and risking the health of her fetus. On that basis, I find that there is a prima facie case of differential treatment on the basis of disability and gender. (2) The Respondent's Explanation [266] Canada Post argued that it imposed the discipline for non-discriminatory reasons, that is, to discipline an employee for insubordination. In that regard, Canada Post relied on the reasoning of the arbitrator who held that Ms. Lipp made a tactical choice not to attend the IME's in Winnipeg. Her defiant stance in that regard justified the imposition of disciplinary leave without pay. [267] The question before me is not, as it was in the arbitration, whether Canada Post was justified in imposing disciplinary leave without pay on Ms. Lipp. Rather, the question that I must answer is whether Canada Post has established, on the evidence, either that Ms. Lipp's status as a pregnant and disabled worker was not a factor in the decision to place her on disciplinary leave without pay, or that the discipline was a bona fide occupational requirement. Canada Post did not raise the latter argument. Therefore, I will not address that issue. [268] Canada Post led no evidence whatsoever that challenged the Ms. Lipp's evidence that her refusal to attend the IME's in Winnipeg was not insubordination, but rather was a decision based primarily on a concern about the effect of travel on her pregnancy. Ms. Lipp testified that she was willing to attend the IME's, but she could not travel out of town for them. She expressed her concern to Canada Post and provided a doctor's note that substantiated her concern. Mr. Hippe was aware that Ms. Lipp had a history of difficulties with pregnancy, and was aware of her related concerns about traveling, but he chose instead to follow Dr. Koz's general statement to him that uterine cramping during the second trimester was normal. Canada Post did not lead any medical evidence in support of what would appear to be an argument that Ms. Lipp's concern about her pregnancy was just an excuse to avoid the IME. [269] In light of the evidence of Ms. Lipp's concerns about her pregnancy and her communication of those concerns to Canada Post, I find that the allegation that Ms. Lipp's refusal to attend the IME's was insubordination, for which she was justifiably disciplined, did not constitute a reasonable explanation for Canada Post's conduct. (3) Tribunal's Conclusion Regarding Allegation Number 5 [270] Accordingly, I find that the imposition of disciplinary leave without pay constituted discrimination on the basis of Ms. Lipp's disability and her gender. VIII. WHAT IS THE TRIBUNAL'S CONCLUSION REGARDING LIABILITY? [271] When Ms. Lipp applied for the full-time position on Shift 3, Canada Post was justified in requiring medical information establishing that she could safely perform the duties of the position and the extent of her restrictions in light of her statement that she could now work past the six hour restriction. When Canada Post transferred Ms. Lipp to the position, it was justified in requiring that she attend an IME to determine the long-term safety of her work load. [272] However, the manner in which Canada Post implemented these requirements was discriminatory. Canada Post's repeated, negative and threatening communication with Ms. Lipp about her disability and the need to provide medical information constituted adverse differential treatment on the basis of disability. [273] Canada Post's continuing requirement that Ms. Lipp attend an IME regarding her physical limitations in the fall of 2001, after her period of sick leave was a bona fide occupational requirement. However, Canada Post's refusal to return Ms. Lipp to her former modified position until she attended two IME's in Winnipeg, one with a psychiatrist and one with an occupational specialist, constituted discrimination on the basis of disability and gender. Finally, the imposition of disciplinary leave without pay was discriminatory. [274] Canada Post was provided with insufficient notice that allegation number one was going to be raised during the hearing. Therefore, I did not consider this allegation and it is dismissed. IX. WHAT IS THE APPROPRIATE REMEDY? A. An Order that Canada Post Return Ms. Lipp to Active Service [275] Ms. Lipp seeks an order, pursuant to s. 53(2)(b) of the Act, directing Canada Post to return her to active service in her position as a full-time postal clerk, on the basis of the medical information that she has already provided. She states that her return would have to be gradual and include an orientation to any new processes and/or procedures that have been implemented since her departure from the workplace in April 2001. [276] Section 53(2)(b) of the Act provides that where the Tribunal finds the complaint is substantiated, it may order a respondent to make available to the victim of the discriminatory practice, on the first reasonable occasion, the rights, opportunities or privileges that were denied the victim as a result of the practice. [277] I have found that Canada Post discriminated against Ms. Lipp on the basis of her disability and her gender when it refused to return her to work on October 9, 2001. I therefore, order Canada Post to return Ms. Lipp to active service in the full-time postal clerk position on Shift Three subject to the following conditions: Canada Post shall work with the union, Medisys and Ms. Lipp to implement a gradual return to work and an orientation program at the earliest reasonable opportunity; The return to work shall be implemented on the basis of the restrictions that were established in March 2000; Upon her return to work, Ms. Lipp is to cooperate with Canada Post to set the earliest possible date for an IME appointment with an occupational specialist to evaluate her current health status and to determine the extent of her current physical restrictions; Canada Post shall work with Medisys to secure an appointment with an occupational specialist in Regina, if at all possible, and if not, in the locale that is in closest proximity to Regina as possible. Once the results of the IME are obtained, Canada Post shall work with the union, Medisys and Ms. Lipp to determine the appropriate accommodation of Ms. Lipp in the full-time postal clerk position. B. An Order that Canada Post Cease its Discriminatory Conduct and Address the Underlying Factors and Effects of the Conduct [278] I have found that while Canada Post was justified in requiring further information from Ms. Lipp, the manner in which it went about doing this was discriminatory. Frequent and negative requests for information, negative questions and comments on the shop floor about work restrictions, and frequent threats of discipline accompanying these requests for information constituted adverse differential treatment in which Ms. Lipp's disability became the focus of Canada Post's negative attention toward her. [279] To address these problems, Ms. Lipp has requested an order directing that Mr. Slater not communicate directly with her except in an emergency. On the basis of the evidence provided by Mr. Hippe and Mr. Jeworski, I find that this order is not appropriate. As Superintendent of Shift 3, Mr. Slater must be free to communicate with all of his employees when the need arises, not only in emergency situations. Although Mr. Jeworski's suggestion of following the normal lines of communication from superintendent to supervisor and from supervisor to employee is a good one, more is needed. It seems to me that what is needed in the present case is a remedy that will address the attitudinal and behavioural factors that gave rise to the discrimination in the first place. It was not only Mr. Slater who was involved in the actions that I have found to be discriminatory. [280] In my view, Canada Post's treatment of Ms. Lipp suggests that some members of management in Regina's Mail Processing Plant felt that an aggressive and confrontational approach to managing employees with disabilities like Ms. Lipp was necessary. This is not appropriate, in my view. It is the responsibility of Canada Post, as the employer, to work cooperatively with the union and individual employees to provide a workplace that is free from discrimination. [281] Therefore, in order to redress the discriminatory practice and to prevent the same from occurring in the future, pursuant to s. 53(2)(a), I order that: Canada Post must cease the conduct that was found to be discriminatory in this case, in particular, unnecessary requests for information about Ms. Lipp's disability including those that are accompanied by unwarranted threats of discipline; In consultation with the Canadian Human Rights Commission, Canada Post must provide sensitivity training to all members of Canada Post management at the Regina Mail Processing Plant with respect to the management and accommodation of persons with disabilities; In consultation with Ms. Lipp and the union, Canada Post must undertake to resolve the conflict between Ms. Lipp and Mr. Slater, and/or make available to Ms. Lipp the services of a counselor of Ms. Lipp's choice to provide her with supportive counseling for a reasonable period of time upon her return to work. [282] Nothing in this order shall limit or restrict Ms. Lipp's obligation to cooperate, in a timely fashion, with Canada Post's requirement that she provide regular updates regarding her medical status, or the provision of information should her restrictions or position change. Moreover, nothing in this order shall limit or restrict Canada Post's right to request an Independent Medical Examination in accordance with the collective agreement in the appropriate circumstances. C. Compensation for Lost Wages [283] The burden of establishing entitlement to compensation is on the complainant (O'Connor v. Town Taxi (1987) Ltd., 2000 BCHRT 9 at para. 60). To establish such an entitlement, the complainant must show some causal connection between the discriminatory act and the loss claimed (Canada (Attorney General) v. Morgan (1991), 85 D.L.R. (4th) 473 (F.C.A.)). To discharge this burden, the complainant must prove only that there is a serious possibility that the respondent's discriminatory act caused the damage for which the complainant claims compensation. Proof of the extent of that damage is another issue. Any uncertainty regarding the extent of the damage must be factored into the assessment of the appropriate quantum of damages (Chopra v. Health Canada 2004 CHRT 27; aff'd Chopra v. Canada (Attorney General) 2006 FC 9). [284] Ms. Lipp argues that she should be compensated for lost wages for the period from October 9, 2001, when her doctor advised that she was able to return to work, to the date when she actually returns to work pursuant to this Tribunal's order. [285] I have divided the Complainant's claim for wage loss into discrete time periods for ease of analysis. 1. October 9, 2001 - December 5, 2001 [286] I have found that Canada Post's refusal to return Ms. Lipp to her full-time duties on October 9, 2001, was discriminatory. Therefore, Canada Post is ordered to pay Ms. Lipp all wages and benefits that she would have received from October 9, 2001 until she was placed on disciplinary leave, on December 5, 2001. 2. December 5, 2001 - March 16, 2005 [287] I have also found that the imposition of disciplinary leave without pay on December 5, 2001, was discriminatory. In principle, therefore, Canada Post would be liable for the wages and benefits that were not paid to Ms. Lipp during the period that she was on disciplinary leave without pay. However, the evidence is not clear as to the exact time frame of this leave. Ms. Lipp testified that she felt that even at the time of the hearing, she was still on disciplinary leave without pay. However, it was not clear from the evidence that this was, in fact the case. Moreover, for the following reasons, I find that there were intervening events in the chain of causality that make compensation for the loss of wages for the entire period from December 5, 2001 until present, too remote. [288] Ms. Lipp was placed on disciplinary leave without pay effective December 5, 2001, pending receipt of the required medical information. [289] On March 16, 2002, Ms. Lipp gave birth to her first child. Canada Post approved Ms. Lipp's request for maternity leave for the period from March 16, 2002, to March 16, 2003. [290] Ms. Lipp testified that she received some statutory employment insurance benefits for the period of her maternity leave. However, she did not receive the full amount that she would have received had she been allowed to return to work on October 9, 2001. Moreover, she did not receive the top-up benefits from Canada Post that were provided for under the collective agreement for her maternity leave period. [291] On April 7, 2003, Mr. Hippe wrote Ms. Lipp a letter indicating that her maternity leave had expired and that no further requests for leave had been received. The letter from Mr. Hippe indicated that if Ms. Lipp wished to return to work she would be required to first complete an OFA. If she did not return the completed OFA by April 21, 2003, Canada Post would consider that she was unwilling/unable to perform her duties at Canada Post. [292] Instead of having the form completed and returning to work, Ms. Lipp testified that she applied for and was granted two one-year periods of unpaid leave for spousal relocation from March 16, 2003 to March 16, 2005. She was entitled to do so under Article 27.05 of the collective agreement. [293] Ms. Lipp stated that her husband (to whom she was not married at the time) had moved to Weyburn because he had found a job there and also because the couple wanted a bigger house in which to raise their family. It was unclear when Ms. Lipp's husband moved to Weyburn, but it would appear to have been prior to April 7, 2003, when Canada Post requested notice of her intentions with respect to her return to work. [294] Ms. Lipp testified that she wanted to be compensated for the salary that she did not receive during the spousal relocation leaves from March 16, 2003, to March 16, 2005. She testified that she would not have applied for a relocation leave to move with her husband to Weyburn had she been allowed to return to work in October 2001. It was because she had been without a full-time income since October 2001 that she was forced to sell her house and her cottage, and move with her husband to Weyburn. She stated that had she been allowed to return to work in October of 2001, she would not have had to sell her house in Regina, and could have stayed there until her husband was able to transfer back to Regina. [295] Ms. Lipp stated that her relationship with her husband, who was her boyfriend at that time, was relatively new, and she was reluctant to move in with him so early in the relationship. As a result of being forced on disciplinary leave without pay, however, she had to move with him to Weyburn. [296] I find that Ms. Lipp's testimony in that regard was somewhat contradictory and implausible. She stated that she would not have moved to Weyburn with her husband but for the financial problems caused by Canada Post. However, she also stated that her husband had moved to Weyburn both for the job, but also because the couple wanted a bigger home for their family. Ms. Lipp further testified that she moved to Weyburn with her husband because they were having a child together. [297] On the basis of this evidence, I am not convinced that there was a serious possibility that but for Canada Post's discriminatory conduct, Ms. Lipp would not have applied for spousal relocation leave without pay. Rather, I find, on the basis of the evidence, that it is highly probable that Ms. Lipp would have applied for the relocation leave regardless of whether she had been permitted to return to work in October of 2001. Mr. Hippe's letter of April 7, 2003 invited Ms. Lipp to return to work. She chose not to do so. Therefore, I find that Canada Post is not liable for her wages during the period from March 16, 2003 to March 16, 2005. [298] However, Canada Post is liable for the difference between the income and benefits that she would have received had she returned to work on October 9, 2001, and what she actually received for the period from December 5, 2001 to March 16, 2003. 3. March 16, 2005, to present [299] Ms. Lipp testified that she and her family returned to Regina in March of 2005. By that point she had given birth to a second daughter. Ms. Lipp stated that she remembered filling out an application form for care and nurturing leave. The collective agreement provided for an unpaid leave of absence to care for preschool age children. Ms. Lipp also testified that by that point in time, the arbitration was underway, she had filed a human rights complaint, and she just wanted to wait until the legal issues had been determined before she returned to work. [300] Canada Post argued that it should not be required to compensate Ms. Lipp for wages that she would have earned from March 2005, until the present time because at no point during this period has Ms. Lipp indicated a willingness or readiness to return to work. [301] In my view, the evidence established that Ms. Lipp made a choice not to return to work after March 2005. Although she stated that she felt that she was still on disciplinary leave without pay, Ms. Lipp was also aware that Canada Post was willing to consider her return to work upon completion of an OFA. She chose not to do this. The evidence established that from March 16, 2005, she chose not to return to work either out of a desire to stay at home and care for her children, as evidenced by her completion of the care and nurturing leave form, or a wish to see the legal issues resolved in this case before she returned, or for both reasons. Canada Post should not have to compensate Ms. Lipp for wages and benefits for a period during which she chose not to work. Therefore, no order for wage compensation will be issued for the period from March 16, 2005 to present. Conclusion Regarding Compensation for Wage Loss [302] In conclusion, therefore, I order that Canada Post compensate Ms. Lipp for any wage and/or maternity and other benefit loss that she incurred during the period from October 9, 2001, to March 16, 2003. While I heard some evidence regarding the amounts that should be considered in calculating the quantum of this award, it was incomplete. I am therefore, unable to set the quantum of the award. The parties are encouraged to reach an agreement on this issue. The calculation of the amounts owing should take into account statutory benefits, insurance payments and any other relevant remuneration received during the time period from October 9, 2001, to March 16, 2003. [303] I shall retain jurisdiction over this aspect of the award in the event that the parties are unable to reach an agreement with respect to the appropriate quantum based on the above findings. The parties are to notify the Tribunal within 60 days of the receipt of this decision if an agreement has not been reached. D. Compensation for Pain and Suffering [304] Section 53(2)(e) of the Act states that the Tribunal may order the person found to have engaged in the discriminatory conduct to compensate the victim, by an amount not exceeding $20,000.00, for any pain and suffering that the victim experienced as a result of the discriminatory practice. On the basis of the following evidence, I find that Canada Post's discriminatory conduct caused Ms. Lipp significant pain and suffering. [305] Ms. Lipp testified that when she went off work in April 2001, she was very upset. Ms. McCarron, the psychologist who treated Ms. Lipp, testified that when Ms. Lipp first attended at her office she was having trouble sleeping, there was some suicidal ideation, she was having nightmares, difficulty concentrating and feeling very afraid and alone. [306] Ms. McCarron tested Ms. Lipp's anxiety and depression levels using the Burns Anxiety Inventory and the Beck Depression Inventory. She testified that Ms. Lipp scored in the severe level for depression, and was extremely anxious. Ms. McCarron testified that discussions of the workplace environment during the counseling sessions would bring on panic attacks for Ms. Lipp. [307] Ms. Lipp's family physician provided a diagnosis of major depression and anxiety disorder and indicated that the workplace conflict was a factor that would prevent her recovery. He stated that Ms. Lipp's anxiety was heightened just by mentioning the current workplace. [308] Ms. Lipp testified that, with the exception of the time that she worked on the midnight shift from January 2001, to March 2001, she felt under constant stress at work. She felt humiliated by the questions and statements about her disability and the seemingly endless requirements to produce more medical information. However, Ms. Lipp also testified that by the fall of 2001, after six months away from the workplace, she was feeling much better. She was happy and anxious to get back to work. She testified that was no longer taking any medication, and was able to control her anxiety with natural stress reduction methods. [309] Canada Post suggested that Ms. Lipp's reactions to the events in the workplace were exaggerated and unreasonable. However, the only evidence that was led in support of this contention was Mr. Slater and Mr. Hippe's testimony that Ms. Lipp had no reason to be so upset. This is insufficient to challenge Ms. Lipp's testimony regarding her suffering. [310] I find that Canada Post's conduct created an extremely negative work environment for Ms. Lipp which resulted in a considerable amount of pain and suffering, and was a significant factor in the development of her depression and anxiety disorder. [311] Ms. Lipp requested $20,000 in compensation for pain and suffering. While I agree that Ms. Lipp experienced considerable pain and suffering as a result of Canada Post's discriminatory conduct, the extent and duration of this suffering does not justify the maximum amount, in my view. Therefore, taking into account all of the circumstances that I detailed above, I order Canada Post to pay Ms. Lipp $12,000 in compensation for her pain and suffering. E. Special Compensation - s. 53(3) of the Act [312] Section 53(3) of the Act provides that the Tribunal may order a respondent to pay up to $20,000 in compensation to a victim of discrimination if the respondent engaged in the discriminatory practice willfully or recklessly. Counsel for Ms. Lipp argued that Canada Post's conduct was decidedly willful or reckless, particularly with regard to the treatment that Ms. Lipp received while she was on sick leave, and then when she tried to return to work in the fall of 2001. Ms. Lipp's counsel argued that Canada Post should be ordered to pay the maximum amount of compensation under this head. [313] I agree that Canada Post's conduct in this case was reckless. Mr. Slater and Mr. Hippe both testified that there were aspects of Ms. Lipp's case that should have been handled differently. Mr. Slater admitted that he sent letters to Ms. Lipp that should not have been sent while she was on sick leave. As I stated earlier, the evidence suggests that Canada Post took a very aggressive and negative approach to managing Ms. Lipp's restrictions and participation in the workforce. I find that this was done in reckless disregard of the consequences that it might have on Ms. Lipp. [314] However, I do not agree that Canada Post's conduct in this case was egregious enough to warrant the maximum allowable amount under the Act. In the circumstances of this case, I find that an order in the amount of $10,000 is appropriate. Therefore, I order Canada Post to pay Ms. Lipp the sum of $10,000 in compensation pursuant to s. 53(3) of the Act. F. Letter of Acknowledgement [315] Counsel for Ms. Lipp argued that while the Federal Court in Stevenson v. Canada (Canadian Security Intelligence Service) 2003 FCT 341, held that the Tribunal may not order the Respondent to provide an apology, the overall goals and intentions of the Act would permit the Tribunal to order the Respondent to acknowledge that its actions have led to a finding of discrimination by this Tribunal. In Stevenson, the Court held that although the Tribunal in that case had made a finding against CSIS, this did not mean that CSIS believed that the decision was necessarily correct, or that CSIS had discriminated against Mr. Stevenson. The Court stated that there was an element of coercion and punishment in the ordering of an apology. It held, therefore, that the authority to order that letters of apology be given to a successful complainant must be expressly provided for in the act or must be derived by necessary implication (an inherent power). [316] In my view, there is also an element of coercion involved in requiring the Respondent to provide Ms. Lipp with a letter acknowledging that its actions have led to a finding of discrimination by this Tribunal. Following the Court's reasoning in Stevenson, I find that I do not have the statutory authority under the Act to order that the Respondent issue such a letter. G. Costs [317] Ms. Lipp has asked that she be reimbursed on a solicitor client basis for the legal expenses that she incurred as a result of this dispute. In a recent decision, the Chairperson of this Tribunal held that the weight of judicial authority supports the Tribunal's power to award legal costs under s. 53(2) of the Act (Mowat v. Canadian Armed Forces 2006 CHRT 49 at para. 27). I agree that the Tribunal has the authority to award costs. [318] I am not of the view, however, that the Tribunal has the statutory authority under the Act to order costs on a solicitor client basis. Rather, judicial authority suggests that s. 53(2)(c) authorizes the Tribunal to order the Respondent to pay the reasonable costs of counsel. In Stevenson, supra, the Federal Court adopted the words used by the Court in Canada (Attorney General) v. Thwaites [1994] 3 F.C. 38 (F.C.T.D.), indicating that paragraph 53(2)(c) of the Act was to be interpreted as granting the Tribunal the authority to award reasonable costs for counsel. Stevenson dealt with an award of costs incurred prior to the referral of a complaint to the Tribunal. In Attorney General of Canada v. Brooks, 2006 FC 500, the Federal Court applied the reasoning in Stevenson to the awarding of costs incurred for ongoing legal representation up to and including representation at the Tribunal hearing. [319] Accordingly, I order that Canada Post pay the reasonable costs to Ms. Lipp of retaining counsel both prior to and during the hearing in relation to the discriminatory practices that were alleged and found to be substantiated in this complaint. [320] Counsel for Ms. Lipp did not lead any evidence on the issue of costs. Therefore, I am unable to make an order with respect to the quantum of this award. The parties are, however, encouraged to come to an agreement on the quantum of reasonable costs in this matter. I shall retain jurisdiction over this aspect of the award in the event that the parties are unable to reach such an agreement. The parties are to notify the Tribunal within 60 days of the receipt of this decision if an agreement has not been reached. H. Interest [321] Interest is payable in respect of all awards made in this decision pursuant to section 53(4) of the Act. The interest shall be simple interest calculated on a yearly basis, at a rate equivalent to the bank rate (monthly series) set by the Bank of Canada, per Rule 9(12) of the Tribunal's Rules of Procedure. Interest with respect to compensation for lost wages and benefits is to run from the midpoint between October 9, 2001, and March 16, 2003. With respect to the compensation for pain and suffering and the compensation under s. 53(3), the interest shall run from the date of the complaint. In no case, however, should the total amount payable under s. 53(2)(e) including interest, exceed $20,000. Similarly, the total amount payable under s. 53(3), including interest, should not exceed $20,000. Signed by Karen A. Jensen OTTAWA, Ontario January 24, 2007 PARTIES OF RECORD TRIBUNAL FILE: T1083/6405 STYLE OF CAUSE: Sandy Culic v. Canada Post Corporation DATE AND PLACE OF HEARING: July 17 to 21, 2006 July 24 to 26, 2006 Regina, Saskatchewan DECISION OF THE TRIBUNAL DATED: January 24, 2007 APPEARANCES: Merrilee Rasmussen, Q.C. For the Complainant (No one appearing) For the Canadian Human Rights Commission Daniel P. Kwochka For the Respondent

2007 CHRT 10

CHRT

Chopra v. Health Canada

en

2007-04-13

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7069/index.do

2023-12-01

Chopra v. Health Canada Collection Canadian Human Rights Tribunal Date 2007-04-13 Neutral citation 2007 CHRT 10 File number(s) T901/2104 Decision-maker(s) Deschamps, Pierre Decision type Ruling Decision Content SHIV CHOPRA Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - HEALTH CANADA Respondent RULING 2007 CHRT 10 2007/04/13 PANEL/MEMBER: Pierre Deschamps [1] In relation to the present proceedings, the Respondent has indicated that it plans to call as a witness Dr. Bailliu, a physician who, it appears, provided the Respondent with a medical certificate with respect to Dr. Lachance, a former employee of the Respondent. The Respondent has already indicated to the Tribunal that it had made the decision not to call Dr. Lachance as a witness because of medical reasons. The Respondent however wants to tender in evidence the medical certificate signed by Dr. Bailliu. [2] In his Notice of motion dated April 4, 2007, the Complainant requests both disclosure of certain documents he submits are arguably relevant to Dr. Bailliu's testimony as well as information by way of particulars. [3] The Tribunal has already indicated that the purpose of a motion for disclosure is to provide the moving party with arguably relevant documents and not to provide information by way of particulars. [4] At the hearing, Counsel for the Respondent indicated that he was prepared to disclose some of the requested documents as long as they related to the medical certificate completed by Dr. Bailliu, dated September 14, 2006. [5] Counsel for the Respondent thus indicated that he was prepared to provide Dr. Bailliu's curriculum vitae, Dr. Lachance's medical record as well as documentation pertaining to Dr. Lachance's medical record as long as it relates to the medical certificate completed by Dr. Bailliu on September 14, 2006. [6] The question in issue here has to do with Dr. Bailliu's appearance as a witness to tender in evidence a medical certificate signed by her that relates to Dr. Lachance's health condition as of September 14, 2006. [7] At this stage of the proceeding, the production of Dr. Bailliu's medical certificate is not in issue. What is however in issue is the disclosure of certain documents which the Complainant submits are arguably relevant with respect to her testimony in the event that Dr. Bailliu is called as a witness. [8] The Tribunal finds that Dr. Bailliu's curriculum vitae, Dr. Lachance's medical record that she has in her possession as well as all documentation related to her assessment of Dr. Lachance are arguably relevant to Dr. Bailliu's testimony. [9] The Tribunal will thus order that the Respondent comply with the Complainant's request for disclosure of documents related to paragraphs (i), (ii), (iii), (iv), (v), (vi), (vii) of Complainant's motion, such as Dr. Bailliu's curriculum vitae, Dr. Lachance's medical record, any invoice for professional fees, as long as these documents relate to the medical certificate completed by Dr. Bailliu's on September 14, 2006, subject to any solicitor-client or litigation privilege. [10] The Tribunal is of the view that the documents or particulars referred to in paragraphs (viii), (ix), (x), (xi), (xii), (xiii) of Complainant's motion are not arguably relevant given the nature of Dr. Bailliu's purported testimony. The Complainant has failed to show that the documents or information referred to in these paragraphs relate to Dr. Bailliu's assessment of Dr. Lachance's medical condition as of September 14, 2006. [11] Counsel for the Complainant will still be able, if Dr. Bailliu is called as a witness, to cross-examine her as to what information or documentation she relied upon when she completed her medical certificate and challenge her opinion as to Dr. Lachance's current state of health. [12] As for the information requested in paragraphs (xiv) and (xv) of Complainant's motion, Counsel for the Complainant will be able to question Dr. Bailliu on these matters, if the latter is ever called as a witness. [13] The Tribunal orders that the following documents be disclosed to Complainant's counsel: Dr. Bailliu's current curriculum vitae - Motion, paragraph (a) (i); Dr. Lachance's medical record in the possession of Dr. Bailliu as long as it relates to the medical condition referred to in the medical certificate - Motion, paragraph (a) (iii); Any document, notes, correspondence related to Dr. Bailliu's assessment of Dr. Lachance with regards to her September 14, 2006 medical certificate - Motion, paragraphs (a), (ii), (iii) (iv), (vii); Any document, such as invoices, pertaining to how Dr. Bailliu was compensated for preparing the certificate dated September 14, 2006, as well as her mandate, subject to solicitor-client and litigation privilege - Motion, paragraphs (a), (v), (vi); [14] Counsel for the Respondent is to provide Counsel for the Complainant with a copy of the above-mentioned documents as soon as he has completed reviewing the documents. [15] Counsel for the Complainant is not to disclose the documents received or any information related to them to anyone except to people in his office directly involved in this file. [16] Counsel for the Complainant shall return to Counsel for the Respondent all documents disclosed if Dr. Bailliu's is not called as a witness. Signed by Pierre Deschamps OTTAWA, Ontario April 13, 2007 PARTIES OF RECORD TRIBUNAL FILE: T901/2104 STYLE OF CAUSE: Shiv Chopra v. Health Canada RULING OF THE TRIBUNAL DATED: April 13, 2007 APPEARANCES: David Yazbeck On behalf of the Complainant (No one appearing) For the Canadian Human Rights Commission David Migicovsky For the Respondent

2007 CHRT 11

CHRT

Center for Research-Action on Race Relations v. www.bcwhitepride.com

en

2007-04-12

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7064/index.do

2023-12-01

Center for Research-Action on Race Relations v. www.bcwhitepride.com Collection Canadian Human Rights Tribunal Date 2007-04-12 Neutral citation 2007 CHRT 11 File number(s) T1120/0206 Decision-maker(s) Deschamps, Pierre Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE CENTER FOR RESEARCH-ACTION ON RACE RELATIONS Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - WWW.BCWHITEPRIDE.COM Respondent RULING 2007 CHRT 11 2007/04/12 MEMBER: Pierre Deschamps [1] At the beginning of Mr. Martinez's cross-examination by Mr. Fromm, Mr. Vigna raised a security issue with respect to a question put to Mr. Martinez by Mr. Fromm in relation to his educational background, more specifically with respect to the university from which he had obtained his BA degree. [2] Mr. Martinez testified that if he was to provide this information, this would impact on his security. He expressed the fear that this information could find its way onto the web and could be used in order to access additional personal information on him, information that could be used to his detriment. [3] Amongst other things, Mr. Martinez referred to the fact that Mr. Fromm, in a nightly radio-show aired on the Stormfront website, had already referred to Mr. Martinez's testimony in the present proceedings. [4] This specific security issue gave way to a more general issue as to the cross-examination of Mr. Martinez, more specifically as to whether or not his cross-examination should be held in camera or be the object of a publication ban. [5] After hearing from the parties on the above mentioned issues, Mr. Vigna suggested that, in order to deal with the security issue raised by himself and Mr. Martinez, the Tribunal view the DVD which had been disclosed to Mr. Vigna by Mr. Fromm and that Mr. Fromm intended to use in the course of his cross-examination of Mr. Martinez. The Tribunal agreed and viewed the DVD in question in the presence of all the parties in an in camera session. [6] The DVD that the Tribunal viewed, marked Exhibit V-1, contains footage from different events pertaining to rallies or protests held in 2004 by Mr. Fromm's group (Canadian Association for Free Expression) in support of Ernst Zundel's release from prison. The first two segments were filmed by Mr. Jurgen Neumann. The third one was produced by the CBC and was aired on the NERVE, a CBC television show. Two other segments deal with other protests involving the ARA (Anti-Racist Action). [7] It was stated by Mr. Fromm that the DVD was created and edited by Mr.Marc Lemire. At the outset of the DVD, Mr. Martinez's name appears. He is depicted as a zealot, a fanatic and a terrorist. [8] The footage screened shows, amongst other things, Mr. Fromm addressing a crowd of people demonstrating in support of Ernst Zundel's release from prison as well as opponents to the protests. Mr. Martinez is seen, with part of his face hidden, demonstrating with the ARA (Anti Racist Action) group. [9] In addition to the DVD, Mr. Vigna tendered in evidence excerpts from different websites (Exhibits V-2 to V-6). [10] Exhibit V-2 contains three pictures of Mr. Martinez, pictures that were part of the DVD viewed by the Tribunal. These pictures were posted on the Canadian Redwatch website. [11] As for Exhibits V-3 to V-6, they contain postings on the Stormfront website. Some of the postings are from Mr. Fromm. These postings refer to Mr. Martinez in unflattering terms. Exhibit V-5 advertises a DVD on Shane Ruttle Martinez. Mr. Martinez is depicted as an ARA leader, a communist and a terrorist. It is stated that the DVD can be bought at a cost of $20. [12] The Tribunal has to decide with respect to the issue of security raised by Mr. Vigna and Mr. Martinez in the course of Mr. Martinez's cross-examination by Mr. Fromm whether or not Mr. Martinez's cross-examination should be held in camera or whether or not a publication ban should be imposed, preventing the dissemination of the content of his cross-examination on the web. [13] At the hearing, in relation to the issue that the Tribunal has to decide, Mr. Vigna referred to section 52, paragraph (1), subparagraphs (c) and (d) of the CHRA which read as follows: An inquiry shall be conducted in public, but the member or panel conducting the inquiry may, on application, take any measures and make any order that the member or panel considers necessary to ensure the confidentiality of the inquiry if the member or panel is satisfied, during the inquiry or as a result of the inquiry being conducted in public, that (c) there is a real and substantial risk that the disclosure of personal or other matters will cause undue hardship to the persons involved such that the need to prevent disclosure outweighs the societal interest that the inquiry be conducted in public; or (d) there is a serious possibility that the life, liberty or security of a person will be endangered. [14] The evidence shows Mr. Martinez to be a human rights activist with the ARA who was present in the past at rallies and protests organized by groups supporting free speech in relation to Ernst Zundel. The footage viewed by the Tribunal shows Mr. Martinez being an active participant at those events, not afraid to make his views known publicly. [15] The evidence also shows that Mr. Martinez has been the object of many postings on websites. The postings are not very flattering towards Mr. Martinez. Mr. Martinez stated he felt offended and degraded by the content of these postings. Mr. Martinez sees them as insulting and defamatory. [16] Mr. Martinez acknowledged however that, per se, the postings did not contain any direct threat to his security but that nonetheless he felt that his security would be jeopardize or compromised if his cross-examination was posted on the web given the information on him already on different websites. [17] The Tribunal is of the view that the posting do not constitute a direct and immediate threat to Mr. Martinez security so that their existence would justify a publication ban with respect to Mr. Martinez's testimony in the course of his cross-examination by Mr. Fromm. [18] As stated previously, the DVD's viewed by the Tribunal refers to Mr. Martinez, in its introduction, as a zealot, a fanatic as well as a terrorist. This, it appears, raises concerns about Mr. Martinez's security. [19] It must be stated here that what is at issue in relation to the publication ban's request is not the dissemination of the DVD but any publication of Mr. Martinez's testimony associated with his cross-examination by Mr. Fromm. [20] The evidence heard in relation to this motion shows that Mr. Martinez has already made his views publicly known about certain groups and issues and has already created animosity and resentment towards his person. Putting a ban on the publication of the content of his cross-examination will not change this state of fact. [21] It must be reiterated here that Human Rights proceeding are public and it is only in exceptional circumstances that the Tribunal should hold in camera sessions or put in place publication bans. [22] All things considered, on the basis of the evidence adduced, the Tribunal finds that the Commission and Mr. Martinez have failed to show that Mr. Martinez's security would be jeopardized if a publication ban was not put in place with respect to Mr. Martinez's testimony related to Mr. Fromm's cross-examination. [23] It must be noted here that Mr. Martinez examination in chief took place during a public hearing and no request was made at the time that it be held in camera or that a publication ban be ordered. [24] This said, if in the course of Mr. Martinez's cross examination security concerns do arise, the Tribunal will deal with these concerns as they arise and, if need be, will make specific orders so as to ensure the protection of sensitive personal information from being disseminated if the Tribunal is of the view that the dissemination of the information could give rise to a serious possibility that the security of Mr. Martinez would be endangered. [25] For the above mentioned reasons, the request to have a publication ban with respect to Mr. Martinez's testimony in the course of his cross-examination by Mr. Fromm is denied. Signed by Pierre Deschamps OTTAWA, Ontario April 12, 2007 PARTIES OF RECORD TRIBUNAL FILE: T1120/0206 STYLE OF CAUSE: Center for Research-Action on Race Relations v. www.bcwhitepride.com DATE AND PLACE OF HEARING: April 12, 2007 APPEARANCES: Fo Niemi For the Complainant Giacomo Vigna For the Canadian Human Rights Commission Paul Fromm For the Respondent

2007 CHRT 12

CHRT

Brar v. Royal Canadian Mounted Police

en

2007-04-17

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7066/index.do

2023-12-01

Brar v. Royal Canadian Mounted Police Collection Canadian Human Rights Tribunal Date 2007-04-17 Neutral citation 2007 CHRT 12 File number(s) T1102/8305 Decision-maker(s) Sinclair, Grant, Q.C. Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE YARINDER BRAR Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - ROYAL CANADIAN MOUNTED POLICE Respondent RULING 2007 CHRT 12 2007/04/17 MEMBER: J. Grant Sinclair UPON the joint Notice of Motion, filed by the Complainant and the Respondent on February 28, 2007, and heard on March 8, 2007; THIS TRIBUNAL ORDERS THAT: [1] The Respondent's motion to clarify the nature and scope of the complaint which will be the subject matter of the inquiry before the Tribunal is disposed of on the basis that the Complainant will be allowed to make the allegations as set out in paragraphs 33-52, but excluding paragraphs 51 (b), (f) and (h), of his Statement of Particulars dated June 23, 2006 and call evidence relating to those allegations, without precluding the Respondent from objecting to any of these allegations, or any of the witnesses coming forward to support these allegations on the basis of prejudice or other objections. [2] The Respondent's motion for an order prohibiting the Complainant from calling certain witnesses is dismissed, without prejudice to the Respondent to argue the relevance of the evidence, the timeliness of the evidence, any prejudice of the evidence, or the fact that the evidence should be subject to immunity, in context of the hearing. [3] The Respondent's motion for an order limiting the ambit of the testimony to be given by certain other witnesses is dismissed, without prejudice to object at the time of the hearing when these witnesses appear. [4] Subject to any privacy concerns and subject to the Complainant identifying the location and source of the following information, the Respondent will produce the following: Full disclosure regarding any complaints made by Constable Sharon Matharu against her supervisor including particulars of how the supervisor was dealt with as a result of these complaint(s) and particulars of any promotion for, or disciplinary action against, the supervisor. Full disclosure regarding the alleged misconduct of the following RCMP officers: S/Sgt. Robert Blundell, C/Supt. Graham Muir, Fraser Mccauley, Supt. Art Crockett, and S/Sgt. Dan McNaughton, including particulars of any disciplinary response taken by the RCMP. Full disclosure regarding any human rights or harassment complaints made against S/Sgt. Keith Milner, including the manner in which the RCMP dealt with those complaints, their outcome, and any impact on Milner, from 1995-2004. Full disclosure regarding any human rights or harassment complaints from the Prince George Detachment during the periods 1989-1993 and 2000-2002, including the resolution of those complaints and the disciplinary or other consequences of the complaints. Full disclosure regarding the allegations referred to in paragraph 18 (a)-(h) of the Complainant's Statement of Particulars of the Complainant, including particulars of any disciplinary action taken by the RCMP. Full disclosure regarding any discrimination or harassment complaints made against Cpl. Phil Noonan, including how they were addressed, the outcome of those complaints, and any impact on Cpl. Noonan. [5] The Respondent shall provide documentation regarding RCMP promotional opportunities over the last 10 years for member to the Officer ranks. [6] Both parties are directed to consult with each other to resolve any difficulties that may arise in the disclosure of the above subject matter. The parties will advise the Tribunal of any difficulties that cannot be resolved as between the parties. Signed by J. Grant Sinclair OTTAWA, Ontario April 17, 2007 PARTIES OF RECORD TRIBUNAL FILE: T1102/8305 STYLE OF CAUSE: Yarinder Brar v. Royal Canadian Mounted Police RULING OF THE TRIBUNAL DATED: April 17, 2007 APPEARANCES: David Yazbeck For the Complainant No one appearing For the Canadian Human Rights Commission R. Jeff Anderson / Emily Farrimond For the Respondent

2007 CHRT 13

CHRT

Wiseman v. Canada (Attorney General)

en

2007-04-25

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7060/index.do

2023-12-01

Wiseman v. Canada (Attorney General) Collection Canadian Human Rights Tribunal Date 2007-04-25 Neutral citation 2007 CHRT 13 File number(s) T1162/4406 Decision-maker(s) Hadjis, Athanasios Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE JOHN WISEMAN Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - ATTORNEY GENERAL OF CANADA Respondent RULING 2007 CHRT 13 2007/04/25 MEMBER: Athanasios D. Hadjis [1] The Attorney General of Canada (Attorney General), acting on behalf of the Correctional Service of Canada and the Treasury Board of Canada, has made a motion for an order amending the style of cause in the present case and requiring the parties to compile a list of the individuals who may benefit from any eventual award made by the Tribunal. [2] The Canadian Human Rights Commission (Commission) filed written submissions in response to the motion. No submissions were filed by the complainant. An order substituting the Attorney General of Canada as the respondent in this matter [3] The Attorney General points out that this case involves allegations of discrimination against an employer. In the context of the federal public service, the employer is the Crown in Right of Canada. However, by virtue of the royal prerogative, legal proceedings cannot be taken against the Crown. Furthermore, departments are not legal entities. Thus, neither the Treasury Board of Canada nor the Correctional Service of Canada is a proper respondent. The Attorney General, therefore, submits that the style of cause be amended to substitute the Attorney General as the Respondent to the complaint, as mandated by s. 23(1) of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50. The Commission consents to this request. [4] The Tribunal has in fact issued a comparable order in Plante v. Royal Canadian Mounted Police, 2003 CHRT 28, and I have personally presided in cases where similar amendments were ordered during the case management process (Morin v. Attorney General of Canada, Tribunal docket No. T739/4402) and during the hearing (Maillet v. Attorney General of Canada, Tribunal docket No. T935/5504). [5] I therefore grant the Attorney General's request in this regard. In the future, I look forward to such matters being addressed by parties before complaints are referred to the Tribunal. An order that the parties compile a list of the individuals who may benefit from any eventual award made by the Tribunal in this case [6] It is alleged in the present complaint that the persons occupying the Assistant Team Leader positions within the Correctional Service of Canada are subject to discriminatory treatment resulting in unequal pay for work of equal value. The Attorney General submits that it would be helpful to all parties as well as the Tribunal to know from the outset who stands to benefit from any eventual award to be made by the Tribunal in this case. For instance, the Attorney General states that with this information, it will be better able to understand the potential liability it faces and marshal the evidence it wishes to call. The Attorney General also points out that if the Tribunal knows which individuals occupied the positions and for what period of time, the calculation of the potential award will be simplified. [7] The Attorney General therefore proposes that the parties compile, on a continuous basis, a list of those Assistant Team Leaders who may benefit from any eventual award made by the Tribunal. The list would include the names of those individuals who have held the position of Assistant Team Leader since 1995 and would identify the duration of their employment in this position. [8] The Commission, for its part, claims that during a previous case management conference call, all parties had agreed to prepare just such a list. Nevertheless, the Commission consents to the issuance of the order being sought by the Respondent. [9] I find the request reasonable, and an order to that effect is provided at the end of this ruling. An order substituting the existing designation of the Complainant with the names of individuals who have been employed as Assistant Team Leaders [10] The complaint form was signed on September 30, 2003, by an individual named John Wiseman. At the top of the form, under the heading Your Name, the following information was entered: John Wiseman Regional Vice President Canadian Association of Correctional Supervisors on behalf of the Assistant Team Leader positions in women's penitentiaries [11] After the complaint was filed, the Commission assigned an investigator to investigate into the complaint. In the investigation report of May 1, 2006, the name of the complainant is indicated as being the Canadian Association of Correctional Supervisors (CACS). On August 22, 2006, the Commission sent a letter to the Tribunal Chairperson notifying him that the Commission had reviewed the complaint of the Canadian Association of Correctional Supervisors and had decided to request that a Tribunal inquiry be instituted into the complaint. [12] The Attorney General points out that the CACS is a voluntary association. Since Assistant Team Leaders are excluded from collective bargaining, the CACS is not a bargaining agent representing them. The Attorney General adds that the CACS is not incorporated and as such is neither a legal or natural person. The Attorney General contends, therefore, that the CACS does not have the juridical capacity to act as a party to these proceedings. [13] According to s. 40(1) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6, any individual or group of individuals having reasonable grounds for believing that a person is engaging or has engaged in a discriminatory practice may file a complaint with the Commission. The Attorney General submits that the ordinary meaning of the words individual or group of individuals demonstrates that Parliament expected that only individuals be allowed to file complaints, whether acting alone or organized around a common purpose. The juridical capacity to act as a party to a proceeding is only bestowed upon persons, whether natural or creations of law. The Attorney General argues that since the plain meaning of s. 40(1) confirms that Parliament intended to allow only natural persons to act as complainants, a voluntary association such as the CACS cannot act as a complainant. [14] The Commission takes a different view. It contends that the CACS constitutes a group of individuals within the meaning of s. 40(1). Even if, as the Attorney General contends, the provision can also be interpreted more narrowly to mean that only one individual or groups made up of identified individuals are capable of filing human rights complaints, this interpretation would be in clear contradiction of the well-established principle that human rights legislation must be interpreted in a manner that most advances the protection and promotion of human rights. [15] Unfortunately, this entire debate seems to have ignored and left behind what is really at the core of the case: the human rights complaint that was filed on September 30, 2003. In my opinion, a plain reading of the complaint shows that it was not the CACS who filed the complaint but rather Mr. Wiseman. The name of the complainant given at the top of the form is clearly John Wiseman. He may happen to be the Regional Vice-President of the CACS, but the name given as the complainant is his. [16] Mr. Wiseman's status as the complainant is evident elsewhere on the complaint form. He signed the form at the bottom with his personal signature alone. There is no indication that he is signing on behalf of a group or organization. Furthermore, his first statement at the top of the form, just below his name, is the following: I have reasonable grounds for believing that I have been discriminated against in employment (my emphasis). There is nothing in this statement to suggest that he is filing the complaint form as a representative of the CACS or any other group. [17] In addition, after Mr. Wiseman filed the complaint, the Commission requested and obtained, pursuant to s. 40(2) of the Act, written confirmation from a number of individuals employed as Assistant Team Leaders (i.e. alleged victims of the discrimination), that they consented to the filing of the complaint. Copies of 25 signed consent forms were attached to the Commission's submissions on the motion. The first line on 18 of those forms states, I consent to John Wiseman or his designated alternate acting as my representative in the present human rights complaint. On the remaining seven forms, the words of CACS are inserted after the words designated alternate. Clearly, all of these individuals have named Mr. Wiseman as their representative. They have also authorized him to designate an alternate. However, from the material before me, there is no indication of his ever having amended his complaint so as to designate the CACS or anyone else, as the complainant or as Mr. Wiseman's alternate prior to the Commission's referral of the complaint to the Tribunal. No request for amendment has been brought before the Tribunal since the complaint's referral either. I can only assume that I am dealing with the same complaint that Mr. Wiseman originally filed with the Commission, and consequently, with the same complainant, Mr. Wiseman. [18] For all of these reasons, it seems to me that the style of cause in this case has been set out inaccurately from the moment that the complaint was referred to the Tribunal. Rather than the CACS appearing as the complainant, Mr. Wiseman's name should rightly appear. [19] I note that that even if it turns out that Mr. Wiseman is not himself a victim of the alleged discriminatory practice (e.g. if he was never employed as an Assistant Team Leader), he is still entitled under the Act to file a complaint as an individual if he has reasonable grounds for believing that a person has engaged in a discriminatory practice. (ss. 40(1) and 40(2)). [20] I therefore deny the Attorney General's request for an order substituting the name of the complainant with the names of the individuals who signed the above-noted consent forms. However, given the actual wording on the complaint form, I instruct the Tribunal Registry to amend the style of cause in these proceedings to indicate that John Wiseman is the complainant in this case. Order [21] I order the following: That the style of cause be amended to show the Attorney General of Canada as the Respondent; That the parties compile, on a continuous basis, a list of those Assistant Team Leaders who may benefit from any eventual award made by the Tribunal. The list will include those individuals holding the position of Assistant Team Leader beginning in 1995 and will identify the duration of their employment as an Assistant Team Leader; and, That the style of cause be amended to show John Wiseman as the Complainant. [22] I further direct that these amendments to the style of cause take effect from this decision onwards. Signed by Athanasios D. Hadjis OTTAWA, Ontario April 25, 2007 PARTIES OF RECORD TRIBUNAL FILE: T1162/4406 STYLE OF CAUSE: John Wiseman v. Attorney General of Canada RULING OF THE TRIBUNAL DATED: April 25, 2007 APPEARANCES: John Wiseman For himself Ceilidh Snider For the Canadian Human Rights Commission Alain Préfontaine For the Respondent

2007 CHRT 14

CHRT

Parent v. Canadian Forces

en

2007-05-01

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7062/index.do

2023-12-01

Parent v. Canadian Forces Collection Canadian Human Rights Tribunal Date 2007-05-01 Neutral citation 2007 CHRT 14 File number(s) T934/5404 Decision-maker(s) Hadjis, Athanasios Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE ALAIN PARENT Complainant - and - CANADIAN FORCES Respondent RULING 2007 CHRT 14 2007/05/01 MEMBER: Athanasios D. Hadjis [1] The Respondent has requested that the hearing into the present complaint be bifurcated. In the first phase of the hearing, the Tribunal would hear evidence regarding the Complainant's allegations of discrimination. If the Tribunal finds that the complaint is substantiated, a second hearing would be conducted regarding the remedial measures being sought by the Complainant. [2] The Respondent suggests that the evidence to be led regarding remedial issues would be considerable and time-consuming. This argues for the proposition of holding two separate hearings, given that if the Complainant is unsuccessful in the first phase, evidence on remedy will be unnecessary. [3] I note, however, that the anticipated testimonies of most of the Respondent's scheduled witnesses, as set out in the witness summaries, deal at least in part with issues relating to the Complainant's allegations of discrimination. From the Statements of Particulars of both parties, it is apparent that questions regarding the Complainant's career progression do not just relate to remedy; they also relate to his claims of discrimination. [4] Furthermore, one must always keep in mind the provision, in s. 48.9(1) of the Canadian Human Rights Act, that the Tribunal conduct proceedings as informally and expeditiously as the requirements of natural justice and the rules of procedure allow. The present complaint relates to incidents dating back to 2000. The complaint was filed in 2002, and the Complainant's subsequent dismissal took place almost four years ago, in June 2003. Given the time that has elapsed since these events, any further delay to the final resolution of all the issues arising in this case is unwarranted and would not be in keeping with the objectives of the Act. [5] I therefore direct that this case not be bifurcated. All issues, including those relating to remedy, will be adjudicated at the hearing scheduled to commence on May 28, 2007. Signed by Athanasios D. Hadjis OTTAWA, Ontario May 1, 2007 PARTIES OF RECORD TRIBUNAL FILE: T934/5404 STYLE OF CAUSE: Alain Parent v. Canadian Forces RULING OF THE TRIBUNAL DATED: May 1, 2007 APPEARANCES: Josée Potvin For the Complainant Pierre Lecavalier For the Respondent

2007 CHRT 15

CHRT

Knight v. Société de transport de l’Outaouais

en

2007-05-02

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7055/index.do

2023-12-01

Knight v. Société de transport de l’Outaouais Collection Canadian Human Rights Tribunal Date 2007-05-02 Neutral citation 2007 CHRT 15 File number(s) T1116/9705 Decision-maker(s) Doucet, Michel Decision type Decision Grounds Disability Decision Content Between: Michel Knight Complainant - and - Canadian Human Rights Commission Commission - and - Société de transport de l’Outaouais Respondent Decision Member: Michel Doucet Date: May 2, 2007 Citation: 2007 CHRT 15 Table of Contents I. Introduction. A. The Factual Background Of Mr. Knight’s Complaint B. Issues C. The Decision of the Commission De La Santé Et De La Sécurité Du Travail D. Did The Respondent Discriminate on the Basis of a Disability in Refusing to Hire the Complainant Because of His Disability? (i) Prima facie evidence (ii) The Application of the Meiorin test and section 15 of the CHRA. (a) The first two elements of Meiorin (b) Did the respondent establish that it would be impossible to accommodate Mr. Knight without causing the respondent undue hardship? E. The Finding on Discrimination F. The Relief Sought By Mr. Knight (i) Integration into the workplace (ii) Compensation for lost salary pursuant to paragraph 53(2)(c) of the Act (iii) Compensation for pain and suffering – paragraph 53(2)(e) of the Act (iv) Expenses incurred - 53(2)(c) (v) Interest I. Introduction [1] On January 25, 2005, Michel Knight (the complainant) filed a complaint with the Canadian Human Rights Commission (the Commission) against the Société de transport de l’Outaouais (the respondent). The complainant alleged that the respondent discriminated against him because of a disability in relation to employment, contrary to section 7 of the Canadian Human Rights Act, R.S. 1985, c. H-6 (the Act). [2] The respondent is a public transit authority serving the communities of Gatineau and surrounding areas, in the province of Quebec. From a constitutional point of view, it is under federal jurisdiction because of its inter-provincial transit activities. In fact, its buses transport passengers from the Quebec side of the Ottawa River to Ottawa, Ontario, on a daily basis. The respondent employs about 750 employees, 108 of whom are maintenance employees. A. The Factual Background Of Mr. Knight’s Complaint [3] The complainant is currently self-employed as a groundskeeper and landscaper. On May 5, 1998, when he was working as a meat cutter, at Market Fresh in Gatineau, he was involved in a work-related accident. Specifically, his right hand was injured when he accidentally put his hand in a meat grinder. According to the medical assessment report, he sustained a very serious injury to the soft tissue and bones of the right index finger, requiring amputation. He also sustained multiple lacerations and damage to the sensory nerve fiber of his right middle finger. [4] Following his accident, he was treated by Dr. Christopher Carter, an orthopaedic surgeon, who proceeded to amputate the index finger of his right hand. Dr. Carter assessed the injury on August 4, 1998, and determined that the complainant had permanent functional limitations, including: Unable to grip the right hand as firmly as the left hand, Prehensile strength diminished by about 50%, Unable to perform activities requiring manual dexterity, Unable to grasp or handle small objects, Entire right hand intolerant to cold. [5] Following this accident, the complainant received income replacement indemnities from the Commission de la Santé et de la Sécurité au Travail (CSST), from the province of Quebec. He then received 90 percent of the net salary that he had earned as a meat cutter. He received these indemnities until about June 2001. The complainant’s functional limitations also entitled him to a lump sum indemnity for anatomicophysiological deficits. This indemnity was $10,812.52. The letter from the CSST advising the complainant of this decision stated that Dr. Carter had calculated his permanent injury at 12.55%, to which the CSST had added 2.50% for pain and loss of enjoyment of life. The complainant never challenged this decision by the CSST. [6] The CSST also requested an orientation report from the complainant in order to identify his skills and aspirations through psychometric tests and interviews. Following this report, a career plan was established taking into account the complainant’s functional limitations. Considering the permanent and definitive nature of the functional limitations identified, the complainant was entitled to a professional transition program financed by the CSST. The CSST records indicate that the complainant, after meeting with the guidance counsellor, decided to register for the following courses: Elevator mechanic course (1st choice) Police technology (2nd choice) Mechanical engineering technology – tool-making (3rd choice) [7] According to the record, the complainant had been refused admission to the elevator mechanics course because it was full. He was however accepted into the police technology course. However, following a discussion between the CSST case officer and the supervisor of the police technology program, the supervisor, when informed of the complainant’s functional limitations, confirmed that he could not work as a police officer. It was therefore decided that this profession was not consistent with the complainant’s functional status. [8] Also according to the CSST’s record, the case officer then called the supervisor of the mechanical engineering technology – tool-making program to discuss the complainant’s functional status with him. The supervisor said that he did not see why the complainant would not be able to successfully complete this training. He added that the duties of a tool-making technician did not require manual dexterity or working in the cold. The CSST therefore determined that the most appropriate rehabilitation measure for the complainant was training in mechanical engineering – tool-making. [9] From September to December 1998, the complainant registered in an adult education centre in Gatineau in order to complete his secondary studies. On January 16, 1999, the Ministère de l’Éducation du Québec issued his high school diploma. Then, for his professional transition program, the complainant registered in the fall of 1999 in a mechanical engineering technology– tool-making program, at the Cité Collégiale, in Ottawa. On June 8, 2001, he received his diploma. The tuition fees for this course, amounting to $8,000, were paid by the CSST. The CSST also paid for certain fees relating to this training program, including one tank of gas per week as well as parking fees so that the complainant could travel to Cité Collégiale. [10] After receiving his diploma in mechanical engineering technology, the complainant worked for a while at a business named Concert Airline, in Gatineau, as an operating engineer. In 2002, he decided to leave this job to take a course in heavy highway vehicle mechanics. [11] For this course, the complainant registered at the Centre professionnel de l’Outaouais, in Gatineau. The evidence established that the complainant had begun this training well before he did the mechanical engineering technology program at Cité Collégiale. In fact, in the CSST record, the complainant’s case officer wrote a note on July 28, 1999, stating: [Translation] At his own initiative, the worker registered in and began training in Heavy highway vehicle mechanics. During one meeting with the worker, I compared the duties of a heavy machinery mechanic with the functional limitations of the worker, the physical environment, the skills and physical abilities. In light of the description of the system benchmark tasks, they do not meet the worker’s functional limitations. This work requires working in the cold, an ability to move fingers quickly and precisely and being able to make distinctions by touch. [12] On June 17, 2004, the Ministère de l’Éducation du Québec gave the complainant a secondary school vocational diploma in heavy highway vehicle mechanics. [13] The complainant was supposed to complete two on-the-job training sessions in heavy highway vehicle mechanics. Both sessions were done with the respondent. The first session was completed between May 23 and June 6, 2003. The complainant successfully completed this training. On the [Translation] Trainee Evaluation Form, the training supervisor, Mario Tanguay, the respondent’s employee, wrote: [Translation] Very good sense of mechanics, good initiative, very good productivity. During this training, the complainant stated that he had worked in the garage under the supervision of a mechanic. He said that over this two-week period he covered everything involving mechanics. He added that not having his index finger did not cause him any problems. [14] Following this training, he applied for a summer job with the respondent. He was hired for the operating station and he worked for the respondent from June 20 to August 25, 2003, i.e. for the duration of the summer contract. During this summer employment, he performed many tasks, including interior and exterior painting, groundskeeping and landscaping. He also mowed the lawn and jet-washed the workstations. [15] The second training session took place from April 5 to April 23, 2004. Once again, the complainant successfully completed his training. The comments by the training supervisor about him were again positive. Mr. Tanguay noted in particular that the complainant was [Translation] a very good team player, mastered the training well, reliably performing the work and that he was an excellent trainee. [16] Following this second training session, the complainant expressed interest in working for the respondent. He then applied for the position of service attendant. The complainant was responding to a competition for recruiting temporary on-call service attendants, which meant that the persons hired did not have a position and had no guaranteed work hours. It appears that obtaining an attendant’s position was the first step to obtaining a position as a mechanic. [17] Work is assigned to on-call service attendants as required. As a general rule, the foreperson assesses the work for the following week and assigns the work to the permanent employees on a seniority basis. Shifts are assigned to the permanent employees for a four- to five-month period. After the work has been assigned to the permanent employees, there is another work assignment for the floating permanent employees, i.e. for permanent employees guaranteed 40 hours of work each week, but who do not have a particular shift. The remaining shifts that are unfilled are then assigned to the on-call attendants. Given that the permanent employees prefer working the day and evening shifts, the on-call employees are generally assigned to the night shifts. [18] According to the work description for the position of service attendant, the attendant works under the supervision of the foreperson – service and rebuilding, ensuring that vehicles are serviced through the periodic maintenance of the buses. The attendant inspects buses before their departure, fuelling, topping up lubricants and checking the air in the tires. Further, he or she cleans all of the vehicles and carries out all related tasks requested by the immediate superior. [19] On May 25, 2004, the respondent contacted the complainant and proposed that he take a competency test for the position he had applied for. The complainant passed this test and was given an interview. In a document from the respondent entitled [Translation] The management committee summary . . . meeting of June 1, 2004, it is indicated that the complainant was hired as a part-time, on-call service attendant. [20] On May 26, 2004, like all of the other candidates hired, the respondent contacted the complainant and asked him to submit to a pre-hiring medical exam by the respondent’s designated consulting physician, Dr. Pierre Matte. Before the medical exam, each candidate is asked to fill out the pre-employment medical exam form. The consulting physician then sees the candidate. [21] In the [Translation] pre-employment exam form filled out by the complainant on June 1, 2004, questions were asked about his personal history. To the question [Translation] Have you ever had a work-related accident or illness?, the complainant responded in the affirmative and referred to the accident involving the index finger of his right hand on May 5, 1998. However, he left the section on functional limitations blank. Similarly, for the question [Translation] Will you receive or have you received a lump sum payment following an illness or injury resulting in a permanent injury?, he checked off no. The complainant signed the form on June 1, 2004. [22] On that same day, the respondent’s consulting physician examined the complainant. Dr. Matte then observed that the complainant had been the victim of a work-related accident and had consequently had the index finger of his right hand amputated. He then informed the complainant that his hiring would be delayed because he had to review his CSST record before he could decide his case. With the complainant’s permission, the respondent then asked the CSST to forward the complainant’s record to Dr. Matte. [23] On July 5, 2004, after receiving the CSST record, the respondent’s Chief of human resources management, Lucie Plouffe, sent a letter to Dr. Matte in which she asked him to determine the complainant’s physical ability to perform the work of a service attendant. She also joined to the letter a work description of the position of service attendant and, as additional information, she listed the [Translation] type of load that the worker could be called to lift when performing his job: Opening the motor door, 90 times/day (75 pounds) (On cross-examination, Mr. Langlois, head of vehicle maintenance, explained that the 75 pounds referred to the total weight of the door, not the force required to open this door.) Emptying fare box, turning mechanism 35 times/day Fuelling 90 buses/day (squeezing lever) Washing exterior of bus with six-foot brush Moving 205 litre (45 gallons) oil barrels when necessary – (On cross-examination, Mr. Langlois explained that there are forklifts for moving these barrels) Working outside to remove snow (occasionally) Jet washing interiors (3000 pounds of pressure) – (On cross-examination, Mr. Langlois pointed out that the pressure is created by the motor used and not by the activation of the sprayer) Washing under chassis with jet sprayer Cleaning parts, must pick up parts weighing between 5 and 75 pounds The door going outside opens and closes regularly during the day. [24] Mr. Langlois prepared this description at the request of Lucie Plouffe and Jacynthe Poulin, the respondent’s health and safety advisor. Mr. Langlois explained that they had asked him to prepare a list of tasks for an employee with a functional limitation in his hand. [25] In light of the mandate conferred to him, as well as the complainant’s work-related accident record and permanent functional limitations, Dr. Matte determined that the complainant did not meet the requirements of the service attendant position on July 14, 2004. During his testimony, Dr. Matte acknowledged, inter alia, that the functional limitation indicating that the [Translation] complainant’s prehensile force was diminished by almost 50% is a relatively vague description. He stated that without verifying it, he relied on the average prehensile force, which in his opinion is about 50 kilograms. Accordingly, he determined that the complainant’s prehensile force in his right hand was between 25 to 30 kilograms. However, when questioned by the complainant, he admitted that a woman, having approximately that much prehensile force, could in fact perform the duties of service attendant. He was quick to point out that he is not considering one particular task, but all of the tasks as a whole. [26] He also adds that the service attendant position requires working in the cold given that the employees are required to wash the buses. Further, the motor door is opened regularly – according to Dr. Matte, it is opened 90 times a day [Translation] because there are about 90 buses that leave – so that buses can get in so that they can be washed. In the winter, the cold comes in when the door is open, the water for washing the buses is cold and the buses are covered with ice and frost. He therefore determined that the complainant could not perform these tasks because of the functional limitation indicating that his entire right hand is intolerant to the cold. [27] Dr. Matte also adds that washing buses requires that the employee handle a water jet with 3,000 pounds of pressure. He pointed out that this work easily requires constant prehensile force of 20 to 25 kilograms. He also stated that the incumbents for this position are asked to move [Translation] large 45-gallon barrels, requiring [Translation] a good grip. During a good part of his testimony in chief, Dr. Matte continued to describe the work to be performed by the employees, determining that the complainant could not perform these tasks because of his functional limitations. [28] On cross-examination, he stated that he did not have to verify the complainant’s limitations since the injury had been assessed and that permanent limitations had been found. He added: [Translation] For me, permanent means permanent. That means that in 20 years, it will still be permanent. When cross-examined by the complainant, Dr. Matte stated that his responsibility and his obligations in a CSST file are to respect the limits determined by the attending physician, in this case those established by Dr. Carter. [29] Having considered all of the work that an employee must perform as well as the complainant’s permanent limitations, Dr. Matte determined that the complainant could not do the work of an attendant. [30] Before taking a final position on the complainant’s case, the respondent gathered its accommodation committee, made up of Lucie Plouffe and Jacynthe Poulin, human resource representatives, and two managerial employees from the maintenance division, i.e. Claude Renaud, the manager, and Sylvain Martel, the chief engineer of the maintenance division. The committee met in order to determine whether it was possible for the respondent to accommodate the complainant. After reviewing the matter, the accommodation committee determined that it was not possible without undue hardship to accommodate the complainant in order to enable him to assume the position of attendant while respecting his functional limitations. [31] Specifically, according to the minutes of the accommodation committee’s meeting that was held on July 20, 2004, the committee summarily considered the positions of service attendant – interior washing and janitor to see whether it would be possible to accommodate the complainant in these positions. The committee determined that the complainant’s functional limitations were inconsistent with these positions. The committee also considered the possibility of setting aside the duty of fuel attendant in the position of service attendant, for the complainant [Translation] since this could meet his limitations. However, the document continues, indicating that [Translation] as it is not conceivable to eliminate the possibility of working at night and the aspect of rotating duties (less popular work shift, usually worked by those with less seniority), this option was eliminated. Further, the committee determined that it did not [Translation] see how it could earmark this duty for the complainant without affecting the morale of the teams, or perhaps their stability. The committee also determined that no other position was available for which the complainant would be qualified. It also stated that it had not examined the possibility of creating a new position, because it would be subject to the posting rules of the collective agreement, and also create financial hardship. Finally, a part-time position was not considered because the duties would be similar to the ones already assessed. [32] During her examination, Ms. Plouffe added that the respondent could perhaps have offered a bus driver position to the complainant. She added that she immediately ruled out this position without performing a thorough analysis because she had already had an ergonomic report done for a driver who had injured his thumb and the report pointed out [Translation] significant difficulties in terms of driving the vehicle. However, on cross-examination, she acknowledged that the career development report prepared by the CSST proposed bus driving as a possible job for the complainant. [33] Ms. Plouffe also testified that the accommodation committee had discussed the possibility of eliminating the night work in the complainant’s case in the event that he was hired, so that he would not have to perform all of the duties of a service attendant. According to the committee, the rules of the collective agreement would not allow them to place the complainant ahead of the other workers. Further, she added that temporary employees like the complainant are hired as replacements, especially at night. [34] The accommodation committee therefore determined that no accommodation could be made for the complainant’s functional limitations. [35] On July 27, 2004, the respondent advised the complainant, by letter, that he could not be considered for the position. Lucie Plouffe and Jacynthe Poulin then met with the complainant to give him the letter and to explain the respondent’s decision. They then explained that the respondent was bound by the functional limitations indicated in the CSST record and that they could not consider him for the attendant position. [36] Following the respondent’s decision, the complainant again contacted Dr. Carter who had prepared the 1998 report. On October 6, 2004, Dr. Carter had the complainant submit to another medical exam. According to the new report prepared by Dr. Carter, the purpose of this assessment was to determine whether the state of the complainant’s hand had improved since the first assessment in 1998, which indicated permanent functional limitations. On October 10, 2004, the complainant sent the respondent Dr. Carter’s new report indicating that the complainant no longer had any functional limitations. According to Dr. Carter, the complainant no longer had difficulty grasping small objects and the sensation at the tip of his middle finger had returned to normal. He added that the complainant used his right middle finger as though he were using the index finger that was amputated. Dr. Carter pointed out that the prehensile force was now [Translation] more or less normal and that the complainant was no longer intolerant to the cold. [37] After receiving the second medical report, the respondent took steps with the CSST in order to see whether it would agree to lift the functional limitations established by Dr. Carter in 1998. The CSST refused to change its 1998 decision and to lift the functional limitations. The respondent therefore considered that it was still bound by the CSST’s 1998 decision. By letter dated December 2, 2004, the respondent informed the complainant that it was not changing its decision not to hire him. In this letter, it stated that [Translation] like any other employer, it has the obligation to take all the measures necessary to ensure the health, safety and integrity of its workers. Pursuant to An Act respecting Industrial accidents and occupational diseases which is a statute of public order, as it was established that you have permanent functional limitations, the STO feels that it is bound by this decision. Moreover, as our company’s physician confirmed that your limitations are inconsistent with the duties of a service attendant, we cannot consider your application. [38] In a note filed on December 1, 2004, one Louise Audet, a CSST agent, after discussions with Jacynthe Poulin, wrote: [Translation] We confirm to Ms. Poulin that there was no legal change to the record. The CSST cannot make another determination on the ability to work unless there has been an RRA. The new MER prepared by Dr. Carter at the worker’s request does not give rise to an RRA. Moreover, the STO, while not bound by the legal decisions in this matter, is justified in wanting to verify the worker’s actual capacity to perform this work. If the STO considers that Dr. Carter’s report is not sufficiently conclusive in this regard, the STO can require that the worker provide an assessment of his functional capacity or have him submit to a pre-employment test. We ask the STO to deal with this worker as it would with a worker who had been involved in the same accident outside the workplace. It is the worker’s responsibility to respect his functional limitations while the employer must ensure that the worker is fully able to perform the task. [Emphasis added.] [39] Following the respondent’s decision, the complainant said that he retained the services of counsel to take steps with the CSST. In a letter dated December 14, 2004, which he sent to the CSST, Réjean Bélanger, the complainant’s counsel, asked the CSST not to change the 1998 medical report, but rather to include Dr. Carter’s medical report, prepared in 2004, in the complainant’s medical record. On January 10, 2005, the CSST informed the complainant that the medical report had in fact been filed into his record. [40] At the hearing, the respondent also filed into evidence the job descriptions of many duties in the maintenance division. Therefore, the office janitor (interior and exterior) is responsible for tidying, maintaining and cleaning the maintenance division’s offices. The service attendant ensures that vehicles are serviced, through the regular maintenance of the buses. The attendant carries out an inspection before departure, fuels, tops up lubricants and checks the air in the tires. The attendant cleans all of the vehicles and performs all related tasks. The labourer (parts cleaning) cleans all of the mechanic parts and cleans the garage. Finally, the labourer (interior and exterior)-garage ensures the overall tidiness of the buildings, the windows and the floors, taking care of internal and external movement of materials as required. [41] In the minutes of the respondent’s accommodation committee meeting referred to earlier, the position of service attendant is described as being divided into three [Translation] large groups of duties: Parking buses in assigned places and emptying the fare box. (Which Mr. Langlois described as the [Translation] parking attendant. Inspection and adjustment of oil levels and inspection of right tires. Fuel attendant, inspection of left tires and electronic data entry (Which Mr. Langlois described as the [Translation] bus refueler.). According to the minutes, duty 1 involves emptying the fare box and therefore handling the mechanism which requires applying a great deal of uniform pressure with both hands. Duty 2 requires lifting the motor door weighing 75 pounds, 90 times a day. The tire inspection requires that the tire be struck hard with a 5-pound hammer. [42] The night shift employees perform the three duties on a rotational basis. The day shift employees, for their part, informally divide up the three duties and the maintenance division tolerates it since it suits the employees and since it does not want to create animosity within the group. The two night shift employees carry out each of the three duties. [43] In the wintertime, the service attendants also have the duty to clean the garage doors at the entrances. Mr. Langlois stated that once the buses are on the road, the employees must ensure that the level of antifreeze and oil is adequate. They then have to move what he described as 45-gallon barrels, adding however that they have forklifts to assist them with this task. [44] In the daytime, there are three service attendants who work: three parking attendants, one bus refueler and someone to check the oil. For the evening shift, there are also five service attendants: two work from 3:00 p.m. to 6:00 p.m. and the three others from 6:00 p.m. to 2:00 a.m. As a general rule, the workers on the evening shift perform the same tasks as those who work in the morning. However, those who work on the night shift carry out all of the tasks. For the day shift, these duties are divided between three workers. [45] According to Mr. Langlois’ testimony, the service attendants who work in the daytime have to take care of about 90 buses, while those working the night shift could have between 25 to 45 buses. [46] The witness then explained the work of the labourer (interior and exterior)-garage. This employee ensures that the premises are tidy. In the wintertime, the labourer is responsible for ensuring that the exits are well cleaned. This employee must also satisfy the needs of the maintenance service; he or she would be responsible for moving the 45 gallon barrels with the forklift. This employee works on the day shift. [47] The labourer–parts cleaner works at what Mr. Langlois described as reconditioning parts. This labourer must clean the parts before they are given to the mechanics for reconditioning and must lift and place the mechanical parts in a large washer. He pointed out that there is a hoist for lifting the largest parts but that parts weighing between 30 and 75 pounds must be handled manually by the employee. [48] The collective agreement provides that the respondent is reserved the right to hire nine (9) temporary employees and that these temporary employees will only perform the functions of service attendant, labourer and janitor. Temporary employees do not have guaranteed hours. [49] During her testimony, Lucie Plouffe described how a temporary employee could change status with the respondent. First, the temporary employee must accumulate work hours. After accumulating 1,040 work hours, the employee is placed on a priority hiring list for the position of service attendant. Once a permanent position becomes available, following a departure or the creation of a new position, the employee who is at the top of the list then obtains the regular position as a service attendant. Once the employee has a regular position, the employee is guaranteed 40 hours of work per week. [50] Ms. Plouffe also stated that temporary employees are given a performance evaluation and that if the evaluation is unsatisfactory, the employer can terminate the employment. Further, according to the collective agreement, the temporary employee who is selected to become a regular employee is subject to a predetermined probationary period. According to the terms of the collective agreement, if the employee accumulated 5,200 working hours or if the employee accumulated 2,080 working hours over a 15-month period, he or she would not be subject to a probationary term. Employees who have accumulated 2,080 working hours over an 18-month period are subject to a three-month probationary period, while the other employees are subject to a six-month probationary period. B. Issues [51] The issues are as follows: Are the respondent and the complainant bound by the decision of the Commission de la santé et de la sécurité du travail of the province of Québec establishing permanent functional limitations? Did the respondent discriminate on the basis of a disability when it refused to hire the complainant because of his disability? In the event that question (b) is answered in the affirmative, did the respondent establish that it is impossible to accommodate Mr. Knight without causing it undue hardship? In the event the complaint is allowed, what compensation should be awarded to the complainant? C. The Decision of the Commission De La Santé Et De La Sécurité Du Travail [52] On May 5, 1998, while he was working as a butcher, the complainant was involved in a work-related accident, which resulted in the amputation of the index finger of his right hand. Following the recommendations issued on August 4, 1998, by the complainant’s attending physician, the Commission de la santé et de la sécurité du travail (the CSST) of the province of Quebec set out the functional limitations which we referred to earlier in this decision. [53] On October 10, 2004, the complainant obtained a new report from his attending physician establishing that he no longer had any functional limitations. The respondent submitted this new report to the CSST. The CSST nevertheless confirmed that the permanent functional limitations were maintained and did not revise its 1998 decision. [54] At the hearing, the complainant asked the Tribunal to lift the functional limitations established by the CSST or, at the very least, to determine that the complainant no longer had any functional limitations, based on the new report of the attending physician and on an occupational therapy assessment report. [55] The Tribunal does not think it necessary to address this issue for the purposes of this matter. Indeed, on reviewing the Canadian Human Rights Act, it is not clear that the Tribunal would have this power. The purpose of the Act is not to determine whether or not a provincial occupational health and safety board was correct to maintain the functional limitations that it assessed. Its purpose is to give effect to individuals’ rights to equality for chances to grow independent of considerations based on their disability. [56] The issue of whether the functional limitations assessed in 1998 by the CSST on the recommendation of the complainant’s attending physician should be lifted may be resolved with the procedure provided under the An Act respecting Industrial accidents and occupational diseases (R.S.Q. chapter A-3.001). In order to achieve the objective of the Canadian Human Rights Act (CHRA) and to determine whether the complaint is founded, the Tribunal need not decide this first issue because, as the respondent admitted, a person afflicted with functional limitations is a person afflicted with a disability within the meaning of the CHRA and the issue is therefore whether the respondent satisfied its duty to accommodate this person, as provided under the CHRA. [57] Moreover, on this point I agree with the remarks of arbitrator Dissanayake, in the arbitration award Re Air Canada and International Association of Machinists and Aerospace Workers (1998), 74 L.A.C. (4th) 233, where he stated: The WCB drew to the employer’s attention its obligation under the Workers’ Compensation Act, R.S.O. 1990, c. W.11, to attempt to provide the grievor with suitable work. It also had an obligation to accommodate the grievor under the Canadian Human Rights Act, R.S.C. 1985, c. H-6, and the collective agreement. . . .[The employer] went on the basis that as long as it followed the advice of the WCB and complied with that legislation, it would be acting legitimately. That, I find to be a serious error, although I have no doubt whatsoever that management was acting in good faith. The problem is that the WCB has no responsibility for compliance with the Human Rights Act. On the other hand, the employer does have an ongoing responsibility under the Act and the agreement to accommodate the grievor’s disability to the point of undue hardship, which is a duty independent of any obligations under workers’ compensation legislation. [Emphasis added.] D. Did The Respondent Discriminate on the Basis of a Disability in Refusing to Hire the Complainant Because of His Disability? [58] These are the relevant provisions of the Act: 3(1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted. … 7. It is a discriminatory practice, directly or indirectly, (a) to refuse to employ or continue to employ any individual, on a prohibited ground of discrimination. … 15(1) It is not a discriminatory practice if (a) any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a bona fide occupational requirements … (2) For any practice mentioned in paragraph (1)(a) to be considered to be based on a bona fide occupational requirements and for any practice mentioned in paragraph (1)(g) to be considered to have a bona fide justification, it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost. 3(1) Pour l’application de la présente loi, les motifs de distinction illicite sont ceux qui sont fondés sur la race, l’origine nationale ou ethnique, la couleur, la religion, l’âge, le sexe, l’orientation sexuelle, l’état matrimonial, la situation de famille, l’état de personne graciée ou la déficience. (…) 7. Constitue un acte discriminatoire, s’il est fondé sur un motif de distinction illicite, le fait, par des moyens directs ou indirects : a) de refuser d’employer ou de continuer d’employer un individu (…) 15(1) Ne constituent pas des actes discriminatoires : a) les refus, exclusions, expulsions, suspensions, restrictions, conditions ou préférences de l’employeur qui démontre qu’ils découlent d’exigences professionnelles justifiées (…) (2) Les faits prévus à l’alinéa (1)a) sont des exigences professionnelles justifiées ou un motif justifiable, au sens de l’alinéa (1)g), s’il est démontré que les mesures destinées à répondre aux besoins d’une personne ou d’une catégorie de personnes visées constituent, pour la personne qui doit les prendre, une contrainte excessive en matière de coût, de santé et de sécurité. [59] Therefore, according to the Act, it is a discriminatory practice to refuse to employ an individual on the basis of their disability. A disability is defined under section 25 of the Act as a physical or mental disability, past or present. [60] The employer’s conduct will not be considered discriminatory where it can be established that the refusal of employment was based on bona fide occupational requirements (BFOR) (subsection 15(1) of the Act). For a practice to be considered a BFOR, it must be established that accommodating the needs of the individual or class of individuals affected would impose undue hardship on the employer considering health, safety and cost (subsection 15(2) of the Act). [61] In British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U., [1999] 3 S.C.R. 3 (Meiorin) the Supreme Court of Canada stated the method to be followed to establish whether a BFOR exists. [62] First, the complaining party has the burden of establishing prima facie evidence of discrimination (Ontario Human Rights Commission v. Simpsons-Sears Ltd. [1985] 2 S.C.R. 536, paragraph 28 (O’Malley)). In this context, the prima facie evidence is the evidence bearing on the allegations that were made and which, if they are to be believed, is complete and sufficient to justify a finding in favour of the complainant, absent a reply by the respondent. Once the existence of the discrimination has been established prima facie, the respondent can justify the impugned standard by establishing the following, on a balance of probabilities: The respondent adopted the standard for a purpose rationally connected to the performance of the job at issue; The respondent adopted that particular standard with the sincere belief that it was necessary in order to fulfill that legitimate work-related purpose; The standard is reasonably necessary in order to fulfill that legitimate work-related purpose. In order to establish that the standard is reasonably necessary, the respondent must show that it is impossible to accommodate the complainant without the respondent suffering undue hardship. The respondent must establish that it considered and reasonably rejected all viable forms of accommodation. (See: British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868, at paragraph 20 (Grismer)). (i)Prima facie evidence [63] In this matter, given the respondent’s admission, the issue of whether the complainant suffers from a disability within the meaning of the Act has been determined. Moreover, even if the respondent had not admitted it, I would have nevertheless determined that the complainant’s physical handicap – namely the absence of an index finger on the right hand and the resulting functional limitations – amounted to a disability within the meaning of the Act. The issue is therefore whether the respondent can justifiably refuse to employ the complainant on the basis of his disability. (ii) The Application of the Meiorin test and section 15 of the CHRA (a) The first two elements of Meiorin [64] The respondent submits that the standard adopted and the ensuing conduct was justified. It contends that considering the functional limitations imposed on the complainant, it was unable to provide him individual accommodation without undue hardship. [65] In submitting evidence and in their final arguments, the parties did not see fit to address the first two requirements of Meiorin. On this basis we can infer that they acknowledge that the standard adopted by the respondent – namely to ensure that the work of the service attendants can be carried out safely and without risk – had a purpose rationally connected to the performance of the job at issue. In my opinion, there is no reason to question this finding. [66] Further, I am persuaded that the respondent adopted this standard in good faith, believing that it was necessary to ensure the safe operation of its business. Therefore, the second Meiorin requirement was also met. (b) Did the respondent establish that it would be impossible to accommodate Mr. Knight without causing the respondent undue hardship? [67] To establish that a standard is reasonably necessary (the third step of Meiorin, which was codified in subsection 15(2) of the CHRA), an employer must establish that it is impossible to accommodate the complainant and other employees affected by the standard without imposing an undue hardship. [68] The Supreme Court in Meiorin, at paragraph 64, advises courts of law and administrative tribunals to consider various ways in which individual capabilities may be accommodated. The employer should determine whether there are different ways to perform the work while still accomplishing the employer’s legitimate work-related purpose. The skills, capabilities and potential contributions of the individual complainant and others like him or her must be respected as much as possible. [69] In this case, the hiring standard emphasizes the need to ensure workplace safety. The fact that this standard excludes certain classes of persons is not discrimination if the respondent can establish that it is reasonably necessary to meet the appropriate objective and if the accommodation was incorporated in the standard. Exclusion is only justifiable where the employer or service provider has made every possible accommodation short of undue hardship. (See British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868, at paragraph 21). [70] One form of accommodation could, for example, be to carry out an individual assessment of the complainant in order to determine whether he is able to work as a service attendant. There is nothing indicating that the respondent attempted to assess the complainant in such a way. Moreover, the testimony of Dr. Matte, the respondent’s consulting physician, was very clear on this issue: he had not examined the complainant personally, nor had he been asked to do so. The evidence establishes that the respondent’s decision was based solely on the findings made by Dr. Carter in 1998 regarding the complainant’s functional limitations. The respondent and Dr. Matte appear to recognize, in good faith I agree, that the decision not to hire the complainant would be legitimate if the respondent adhered to the CSST’s findings with regard to the functional limitations. One problem with this approach is that it fails to take into account the fact that the CSST is not in any way bound to comply with the Act. The respondent is not exempted from the obligations of the Act simply because there is the An Act respecting Industrial accidents and occupational diseases, R.S.Q. chapter A-3.001 (the AIAOD). Moreover, I must point out that with regard to the CSST, the respondent did not show why or how it was bound by the CSST’s findings at the hiring stage, especially when these findings were based on medical information that was no longer current. The respondent had the burden of establishing how the failure to respect these findings would amount to undue hardship. [71] I am not persuaded, according to the evidence filed, that the respondent made any effort to assess the complainant individually in order to establish whether his condition would prevent him from carrying out the duties and responsibilities of a service attendant, or how the individual assessment of the complainant would cause it undue hardship. On this point, the respondent appears to have focussed all of its attention on the obligations imposed on it by the AIAOD, and failed to pay sufficient attention to the obligations under the Act. [72] The respondent claims that it was not necessary to assess the complainant’s individual ability. It is convinced that the functional limitations issued by the CSST made him unable to safely perform the service attendant duties. I am not persuaded by this argument. Allowing an employer to rely on opinions regarding its employees’ disabilities that it perceives to be obvious without carrying out an individual assessment of their abilities to safely carry out the work would have the effect of giving it too easy a justification for conduct which could otherwise be discriminatory. As the Supreme Court stated in Grismer, supra, at paragraph 19, accommodation must be incorporated into the standard itself to ensure that each person is assessed according to her or his own personal abilities, instead of being judged against presumed group characteristics which are frequently based on bias and historical prejudice. Accordingly, an employee’s individual assessment is an essential step in the accommodation process unless it is in itself an undue hardship for the respondent (See Grismer, at paragraphs 22, 30, 32 and 38; Meiorin, at paragraph 65; and Audet v. National Railway, 2006 CHRT 25, at paragraph 61.) [73] However, even if I were to determine that the respondent did not have to carry out a personal assessment of the complainant because it would cause undue hardship, there would still be the issue of whether the respondent, after establishing that the complainant was unfit for the position of service attendant, investigated and reasonably dismissed all other possible alternatives that it could have offered him without causing it undue hardship (See Meiorin, supra, at paragraph 65). In my opinion, it failed to establish that it satisfied this requirement. [74] The respondent’s evidence is that it assessed all of the alternatives of reasonable accommodation taking into account the complainant’s disability and functional limitations. Before making a final decision regarding the complainant’s case, it formed an accommodation committee made up of representatives from human resources and the maintenance division. This committee met to assess whether it was possible for the respondent to accommodate the complainant without suffering undue hardship. [75] According to the evidence, the accommodation committee determined, after reviewing Dr. Matte’s analysis, that it was not possible to accommodate the complainant so as to enable him to work as an attendant while respecting his functional limitations. According to the analysis that the committee carried out, the different duties assigned to the service attendants did not respect the complainant’s functional limitations. [76] The accommodation committee summarily examined the positions of service attendant – interior cleaning and janitor to see whether it would be possible to accommodate the complainant. It determined that the complainant’s functional limitations were inconsistent with these positions. The committee said that it had also examined the possibility of setting aside the function of fuel attendant for the complainant, within the position of service attendant, [Translation] since this could fit his limitations. The committee determined [Translation] as there is no option of eliminating the night shift and the aspect of rotating duties (less popular shift usually worked by those with less seniority, this option was eliminated. The committee was also of the opinion that it could not [Translation] set aside this duty for the complainant without affecting the moral or even the stability of the teams. [77] The committee also determined that no other position was available for which the complainant could qualify. It did not examine the option of creating a new position because, according to the committee, it would have been subject to the rules of the collective agreement, and it would have created financial hardship for the respondent. Finally, a part-time job was not assessed since, according to the committee, the tasks would have been similar to those already assessed. [78] During her examination, Ms. Plouffe stated that there may perhaps have been a bus driver position that the respondent could have offered the complainant. She added that, without carrying out an exhaustive analysis of the complainant’s ability to fill that position, she eliminated it [Translation] from the outset because she had already had an ergonomic report performed for another driver who had injured his thumb and the report pointed out [Translation] significant difficulties in terms of driving the vehicle. However, on cross-examination, she acknowledged that the career development report prepared by the CSST proposed bus driving as a possible job for the complainant. [79] Ms. Plouffe also testified that the accommodation committee had discussed the possibility of eliminating the night work in the complainant’s case in the event that he was hired, so that he would not have to perform all of the duties of a service attendant. According to the committee, the rules of the collective agreement would not allow them to place the complainant ahead of the other workers. The committee therefore determined that there was no way to accommodate the complainant’s functional limitations. [80] Let us first address the argument advanced by the accommodation committee to the effect that accommodating the complainant would undermine the teams’ morale. First, I note that this submission is not supported by the evidence. Further, in Meiorin, supra, the Supreme Court stated the following in regard to a similar issue, at paragraph 80: Although serious consideration must of course be taken of the objection of employees based on well-grounded concerns that their rights will be affected, discrimination on the basis of a prohibited ground cannot be justified by arguing that abandoning such a practice would threaten the morale of the workforce. [81] To determine what constitutes undue hardship, the respondent relied on several arbitration awards including, inter alia, the one in Syndicat des technologues en radiologie du Québec et Centre hospitalier des Vallées de l’Outaouais (Pavillon de Hull), T.A. 199-08-12, DTE 99T -1044 (Denis Nadeau), decided a few months before the Supreme Court decisions in Meiorin and Grismer. In this award, the arbitrator listed a certain number of rights that could be adversely affected by the implementation of an accommodation measure. He refers to, inter alia: burdening other employees called to assume part of the accommodated person’s duties, exposing the health and safety of employees to a greater risk when they have to work with a colleague requiring a particular accommodation, agreeing to a less advantageous work schedule, waiving an expected promotion or deployment to another position. Without deciding whether these concerns are founded with regard to the duty to accommodate provided in the Act, I would point out again that there was no evidence establishing that this was the case here and that this would cause undue hardship to the respondent. [82] While under certain circumstances these considerations could perhaps justify the refusal to accommodate persons with disabilities, we must avoid not assigning enough importance to the accommodation of the handicapped person. It seems far too easy to raise these considerations to justify a refusal to give equal treatment to handicapped persons. I am not saying that these considerations can never be relevant in matters of accommodation; rather I am saying that the evidence, made up of impressions, is not enough. [83] According to the Meiorin requirements, the respondent had to establish that it considered and reasonably rejected all viable forms of accommodation. It had to demonstrate that it was impossible to incorporate individual aspects of accommodation without causing it undue hardship. In Grismer, at paragraph 43, the Supreme Court describes the respondent’s burden in a case like this one as follows: Common sense and intuitive reasoning are not excluded, but in a case where accommodation is flatly refused there must be some evidence to link the outright refusal of even the possibility of accommodation with an undue safety risk. [84] I also understand that the complainant has the right to be accommodated as long as this does not cause undue hardship to the respondent. The use of the adjective undue indicates that some degree of hardship is acceptable, only the hardship that is undue can excuse the employer from its duty. The evidence did not persuade me that the accommodation of the complainant would require a substantial reorganization of all of the duties to the point where it would have caused undue hardship to the respondent. The respondent alleges, without persuasive evidence, that accommodation – without specifically defining this accommodation – would result in risks to the health, safety and security of the complainant and the company’s other salaried employees. In its opinion, that amounts to undue hardship. However, nothing in the evidence submitted at the hearing supports these claims. [85] While accepting that the duty to accommodate does not go so far as to oblige the creation of a tailor-made position for the complainant, we must point out that that is not what the complainant is requesting. The complainant is asking for the opportunity to show that he can, with accommodation, perform the tasks of the position for which he applied. [86] The evidence filed by the respondent has not persuaded me that providing an accommodation for the complainant could cause it undue hardship. There were possible accommodation options but the employer dismissed them for reasons which, if indeed they could be described as hardships, are far from being undue hardships, at least based on the evidence submitted at the hearing. [87] I also note that in his arguments, the respondent’s counsel notes at paragraph 66: [Translation] After receiving the second report of the complainant’s attending physician, the STO even took steps with the CSST in order to see whether it would agree to change the functional limitations, but without avail. I can infer that had the CSST lifted those limitations, the respondent would have hired the complainant. Therefore, we can ask ourselves whether the respondent’s apparent perceived hardship was based on its perception that its obligations under the An Act respecting Industrial accidents and occupational diseases prevented it from hiring the complainant. However, as we have determined that the obligations under that statute do not relieve the employer of the obligation to comply with the Act, it would be difficult to find undue hardship, especially since the respondent did not provide evidence of it. E. The Finding on Discrimination [88] For all of the reasons stated above, I find that the respondent did discriminate against the complainant based on his disability, breaching section 7 of the Act. The respondent did not establish that its decision not to hire the complainant for the position of service attendant was based on bona fide occupational requirements, pursuant to section 15 of the Act. [89] Mr. Knight’s complaint is therefore founded. F. The Relief Sought By Mr. Knight [90] The complainant is seeking the following relief: An order requiring the respondent to be integrated into the workplace in a permanent service attendant position; Compensation for loss of salary pursuant to paragraph 53(2)(c) of the Act; Compensation for pain and suffering in accordance with paragraph 53(2)(e) of the Act; and The reimbursement of certain expenses. (i) Integration into the workplace [91] The complainant is seeking an order, under paragraph 53(2)(b) of the Act, providing that the respondent integrate him in a service attendant position as a regular employee. Paragraph 53(2)(b) states that the Tribunal, when it finds that a complaint is substantiated, may order that the respondent make available to the complainant, on the first reasonable occasion, the rights, opportunities or privileges that were denied to him as a result of the practice. [92] The complainant submits that he is entitled to this relief since the evidence established that the employees hired after the respondent denied him the position are now regular employees. He is therefore asking that the Tribunal order the respondent to integrate him into a service attendant position as a permanent employee, retroactive to June 1, 2004. I note however that the evidence does not establish that all of the employees hired after June 1, 2004, have regular positions today. Some did not pass the probationary period and are no longer in the respondent’s employ. The possibility that the complainant could have suffered the same fate cannot be excluded. With regard to the complainant’s integration to a more senior position, it is an issue of sufficiency of evidence. The complainant has the burden of establishing that what he is seeking was reasonably foreseeable. He did not satisfy this burden in this case. I am not persuaded that the evidence filed indicates that there was a serious possibility that the complainant would have attained a permanent position at the time of the Tribunal’s decision. (See Canada (A.G.) v. Uzoaba, [1995] 2 F.C. 569.) [93] Under the circumstances, the Tribunal cannot grant the complainant’s request and order that the respondent integrate him in a regular service attendant position. The respondent’s discriminatory practice did not deprive the respondent of such a position, but rather of the opportunity to be entitled to such a position on call and the opportunity after a probationary period to apply for a regular position, in accordance with the provisions of the collective agreement. [94] In the arbitration award Air Canada and I.A.M. (Petelka) (Re), supra, Arbitrator Dissanayake was faced with a factual situation that resembled this case on several points. This is what he had to say about a request for a remedy similar to the one sought by the complainant : Quite apart from the qualifications and skill, before I order that the grievor be appointed to a particular position, I must be satisfied that he is medically fit to do the functions of the position. On the basis of the evidence before me I am not able to satisfy myself with any reasonable level of confidence whether or not the grievor can do so. It would be irresponsible for me to order that the grievor be appointed to a particular position in the absence of any evidence that the grievor is capable of performing without posing undue risk to himself or his fellow employees. Nor can I decide what accommodation, if any, he may require to be able to do either job. The WCB personnel who assessed the grievor did not testify before me, nor did the Air Canada physician. The only medical expert who testified was the grievor’s personal physician, Dr. Bhatia. His evidence is not very helpful to me in that he testified without ever having turned his mind to the actual duties and responsibilities of a Station Attendant job at the Ottawa Airport. He had not even seen a position description. The employer had not gone through any exercise of identifying the essential duties of either job. It had not had the grievor assessed medically in relation to his ability to perform those duties. If the grievor had some duties outside his restrictions the employer had not considered how he may be accommodated. The grievor’s own assessment of his ability is not dependable either. [95] In this case I am faced with a similar problem. Apart from the complainant’s professional abilities, no convincing evidence was submitted regarding his physical ability to perform the duties required for the service attendant position without the need of accommodation. I cannot in good conscience issue an order requiring the respondent to give a regular position to the complainant without being persuaded that he can perform these duties. It is also impossible for me to determine on the basis of the evidence before me what accommodations would be appropriate for the complainant, if need be. The only medical evidence that I have about the complainant’s abilities is from Dr. Carter, who did not assess his functional limitations while considering the duties of the desired position, and from Dr. Matte, who determined that the complainant could not perform these duties, although he had not assessed the complainant. [96] Accordingly, I order that the respondent integrate the complainant into an on-call service attendant position. Before the complainant begins working, however, the respondent could proceed with an independent expertise to assess his abilities to perform the duties required of a service attendant and to assess, if need be, the accommodations which could be required. In the event that this expert’s report should establish that the complainant is able to perform these duties with or without accommodation, the complainant shall then be submitted to the probationary period provided under the collective agreement. [97] I also order that the respondent and the complainant cooperate in good faith in enforcing this order. (ii) Compensation for lost salary pursuant to paragraph 53(2)(c) of the Act [98] As a second remedy, the complainant is seeking compensation for loss of salary pursuant to paragraph 53(2)(c). According to the assessment prepared by the complainant, he allegedly lost $75,352.84 in salary between June 2004 and December 2006 because of the respondent’s discriminatory practice. He is therefore claiming this amount as compensation for loss of salary. Without accepting the figures presented by the complainant or his right to recover this or any other amount, the respondent recalculated while taking into account the collective agreement, and arrived at the amount of $73,019.40. [99] The respondent argued first, and correctly, that the complainant had the duty to mitigate its losses. This duty to mitigate, whether it results from the Quebec Civil Code or from the common law, has the same purpose in both cases, namely to alleviate the aggravation of damages by taking the measures that a reasonably prudent and diligent person would have taken under the same circumstances. The failure to mitigate damages could lead to a significant reduction of the compensation awarded and even to the dismissal of the complainant’s claim. The issue is therefore whether the complainant established that he reasonably responded to this duty to mitigate his prejudice. (See Canada (Attorney General) v. Morgan (C.A.), [1992] 2 F.C. 401, at paragraph 24.). [100] After July 27, 2004, the date the complainant learned that the respondent would not hire him for the attendant position, he stated that he was self-employed in his landscaping business. He said that he started this business during the summer of 2003. The business operated essentially, the first year, from April to August. [101] From September 2003 to June 2004, the complainant stated that he did not work because during this period he was training to become a heavy highway vehicle mechanic. As of June 2004, he said that he resumed his landscaping business. During 2004, he said that he continued his business beyond the summer until the wintertime, when he began to do snow removal with a snow blower. [102] The complainant stated that he began to actively seek employment in the winter of 2005 by sending his curriculum vitae almost everywhere. He added that he applied for work mostly in Quebec because he did not think his knowledge of English was good enough to apply for work in Ontario. He stated that he received very few acknowledgements of receipt and was never called for an interview. [103] The complainant filed his income tax returns for 2004 and 2005. In both of these returns, he stated that he was self-employed in the field of landscape design. For 2004, his total revenue was negative, i.e. a loss of $3,947.66. This amount included $5,464 in revenue from employment insurance benefits and from a job that he worked during the year and a loss of $9,511.66, for his work in his landscaping business. In the statement of business activities for that year, he reported $23,839.34 in revenue and expenses of $33,251.66. Inter alia, he reported $4,448.53 in advertising expenses, $11,215.97 in motor vehicle expenses and $14,537.19 in expenses for supplies. [104] In his 2005 income tax return, the complainant stated once again that he had a negative income of ($4,993.31). Specifically, his statement of business activities indicated sales of $22,177.34 and expenses of $27,170.65. The motor vehicle expenses for this year were $14,149.14 and those for supplies were $9,569.59. [105] He explained the expenses for supplies were for purchasing equipment for his business, namely a trailer, mowers, tractors, trimets and saws. He also added to his supplies expenses the cost of cedars that he had to plant during those years. In his expenses, he included a claim for the payments made on the mortgage interest of his home. On cross-examination, he stated that this expense was unrelated to his business and that he did not see relevance. [106] For 2004 and 2005, he declared that he had not had any job. [107] I must admit that I have a great deal of difficulty accepting the figures submitted by the complainant regarding his revenues for the years 2004 and 2005. Although I can admit that a business can operate at a loss, I have trouble accepting that the complainant could have worked for two consecutive years without making any income. Nobody would agree to operate a business under those circumstances. [108] For 2004, I note that the gross revenues of the complainant’s business were $23,839.34, according to his tax return. If I accept that half of the expenses declared by the complainant in his return are reasonable, his net income for that year would then be about $12,000. I find that this amount more reasonably represents the complainant’s revenue for 2004. [109] In his calculations for 2004, the complainant claimed $10,925 for lost salary. He states that if he had worked for the respondent in 2004, he would have worked for 25 weeks, i.e. the equivalent of 575 hours, at the hourly rate of $19.00. According to the evidence of Ms. Plouffe, the hourly rate of the agreement would rather have been $17.07 per hour, for a salary of $9,815.25. I find the calculations of Ms. Plouffe more trustworthy. Taking into consideration the evidence, I find that for the months of June, July and August 2004, the complainant did not suffer from any loss of salary because he was then operating his landscaping business. However, for the months of September to December 2004, I assess his loss at $4,000, namely somewhat less than half of the amount calculated by Ms. Plouffe. [110] For 2005, he declared gross earnings of $22,177.34 for his business activities. Once again, I find that the expenses that he is claiming for that year seem excessive. In fact, he says that he had business expenses of $27,170.65, which would mean that he had lost income for a second consecutive year in operating his business. I consider the claims for both the motor vehicle expenses ($14,149.14$ - namely 100% of the use of the vehicle) and the supplies expenses (9 569,59$) to be excessive. These expenses alone would absorb all of the business’ revenues. He again claimed mortgage costs which he recognized on cross-examination had nothing to do with his business. [111] For 2005, it would be more realistic to consider a lesser amount for the complainant’s expenses. As the respondent suggested, I believe that this amount could be reduced by half, which would mean that for this year the complainant’s income would be about $11,000. According to the figures submitted by Ms. Plouffe, the complainant would have earned $28,736.43 had he worked for the respondent during that year. Therefore, for 2005, considering the income of $11,000, his loss of salary would be $17 000. I determine that the loss of salary for the complainant for 2005 was $17,000. [112] For 2006, the complainant did not submit any statement regarding his income and without such evidence, it is impossible for me to grant an amount for the loss of salary. [113] In conclusion, the complainant is entitled to $4,000 for loss of salary for 2004. For 2005, the amount is $17,000. There is no amount awarded for 2006, based on the lack of evidence. [114] Under paragraph 53(2)(c) of the Act, the complainant is therefore entitled to $21,000 for loss of salary following the respondent’s discriminatory act. This amount seems reasonable to me given the evidence and the complainant’s duty to mitigate his loss. (iii) Compensation for pain and suffering – paragraph 53(2)(e) of the Act [115] The complainant is also claiming $20,000 as compensation for pain and suffering under paragraph 53(2)(e). I must admit that the evidence submitted at the hearing in support of this claim seems weak to say the least and is certainly not enough to justify the amount claimed by the complainant which is the maximum provided under the Act. While subsection 53(2) of the Act gives discretion to the Tribunal with regard to granting various remedies when a complaint proves to be founded, such discretion must be exercised judiciously in light of the evidence before the Tribunal. In this case the complaint is allowed and nothing in the complainant’s testimony indicates any reason to refuse awarding him compensation for pain and suffering. (See Dumont v. Transport Jeannot Gagnon, 2002 FCT 1280.) [116] I agree that the respondent’s decision did cause the complainant pain and suffering, if only in terms of anxiety. I therefore award $2,000 as compensation for pain and suffering. (iv) Expenses incurred - 53(2)(c). [117] Pursuant to paragraph 53(2)(c) a complainant can claim additional costs and expenses incurred as a result of the discriminatory practice. In this case, the complainant is claiming the reimbursement of: An invoice for legal representation before the CSST for $312.01; An invoice for an occupational therapy report for $55; and An invoice for a medical report for $315.65. [118] For the invoice for legal representation before the CSST, I cannot see how the complainant’s dealings with the CSST could be blamed on the respondent in this matter. This claim is therefore refused. [119] With regard to the invoice for an occupational therapy report, we refer to a report prepared by a firm called CRD Physiothérapie et Réadaptation. This report was never filed into evidence. The claim for the reimbursement of these fees is therefore also refused. [120] The invoice for the reimbursement of Dr. Carter’s second medical report is however accepted since it resulted from the discriminatory practice. If the respondent had carried out an individual assessment of the complainant, this second report would not have been necessary. I therefore order the reimbursement of the invoice for $315.65. (v) Interest [121] Interest is payable with regard to all indemnities awarded in this decision (subsection 53(4) of the Act). Interest shall be calculated in accordance with subsection 9(12) of the Canadian Human Rights Tribunal Rules of Procedure (03-01-04) simple interest calculated on a yearly basis based on the official rate set by the Bank of Canada. Interest shall accrue from the date of the complaint until the date the indemnity is paid. Signed by Michel Doucet Tribunal Member Ottawa, Ontario May 2, 2007 Canadian Human Rights Tribunal Parties of Record Tribunal File: T1116/9705 Style of Cause: Michel Knight v. Société de transport de l’Outaouais Decision of the Tribunal Dated: May 2, 2007 Date and Place of Hearing: November 6 to 9, 2006 Ottawa, Ontario Appearances: Michel Knight, for himself Ikram Warsame, for the Canadian Human Rights Commission Jean-François Pedneault, for the Respondent

2007 CHRT 16

CHRT

Warman v. Lemire

en

2007-05-07

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7058/index.do

2023-12-01

Warman v. Lemire Collection Canadian Human Rights Tribunal Date 2007-05-07 Neutral citation 2007 CHRT 16 File number(s) T1073/5405 Decision-maker(s) Hadjis, Athanasios Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE RICHARD WARMAN Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - MARC LEMIRE Respondent - and - ATTORNEY GENERAL OF CANADA CANADIAN ASSOCIATION FOR FREE EXPRESSION CANADIAN FREE SPEECH LEAGUE CANADIAN JEWISH CONGRESS FRIENDS OF SIMON WIESENTHAL CENTER FOR HOLOCAUST STUDIES LEAGUE FOR HUMAN RIGHTS OF B'NAI BRITH Interested Parties RULING MEMBER: Athanasios D. Hadjis 2007 CHRT 16 2007/05/07 [1] The Canadian Human Rights Commission has made a motion seeking an order that special measures be adopted with regard to the upcoming testimony of three witnesses, Hannya Rizk, Harvey Goldberg and Dean Steacy. [2] These individuals are employees of the Commission. The circumstances giving rise to Mr. Goldberg and Mr. Steacy being called to testify relate back to affidavits that they each swore shortly before the start of the hearing. These affidavits were produced by the Commission in support of its position that it had complied with its disclosure obligations, a position with which Mr. Lemire took issue. Mr. Lemire's counsel, Barbara Kulaszka, therefore, sought leave from the Tribunal to cross-examine these individuals on their affidavits. Given that the affidavits were filed 17 days prior to the start of the hearing, I directed that if Ms. Kulaszka wanted to cross-examine the affiants, she could simply call them as witnesses at the hearing. [3] Ms. Rizk, for her part, was apparently the Commission employee who investigated Mr. Warman's complaint. Mr. Lemire contends that during her investigation, she was unable to locate some of the impugned material that Mr. Warman alleges to have viewed on the Internet. Mr. Lemire is also claiming that Ms. Rizk had been investigating Mr. Lemire's activities on the Internet well before Mr. Warman had filed the present complaint. [4] The matter of the three witnesses' testimony was discussed at the opening of the hearing, in Toronto, on January 29, 2007. Ms. Kulaszka confirmed her intent to call the three witnesses, who all apparently reside in the National Capital Region. In order to facilitate matters, Ms. Kulaszka proposed that their evidence be given in Ottawa. None of the parties raised any objection to this choice of venue and I accepted Ms. Kulaszka's proposal. The witnesses would testify following the close of the four weeks of hearings that ended on March 2, 2007, in Toronto. The dates for their testimony were ultimately set down for May 9 to 11, 2007, at the Tribunal's offices in downtown Ottawa. [5] The Commission is now seeking the adoption of special measures regarding these witnesses' evidence, namely, that they be allowed to testify from a different location than the Tribunal's hearing room by video conference. Their physical and visual appearance would be seen by the Tribunal and counsel via video while everyone else, including Mr. Lemire, would be seated in a separate room where they would only be able to hear the audio portion of the testimonies. [6] During the four weeks of hearings in Toronto, the Commission made no request for the special measures it is now seeking. However, on March 2, 2007, the Commission filed a motion to quash the subpoenas, which I dismissed on March 14, 2007. [7] The Commission has filed copies of numerous postings on the Internet that it contends show that the Commission has legitimate reason to fear for the safety and security of its employees. Some of this material is abhorrent and very troubling. It includes a fictional account of a shooting at a Tribunal hearing, numerous messages calling for the death of Mr. Warman, judges, and Tribunal members, and details regarding Mr. Warman's home address. All of these postings are, of course, made anonymously or with pseudonyms. I gather that they have been made on websites based in the USA. There is no evidence before me linking this material to Mr. Lemire. [8] Photographs of Mr. Warman have also been posted on the web, as well as those of one individual who is alleged to be involved with a group called Anti-Racist Action. In 2006, prior to the start of the hearing, photographs of all the intended expert witnesses in this case (Mr. Lemire's, as well as the Commission's and the Attorney General's) were presumably posted by Mr. Lemire on a web page dealing principally with the present case, which is located on the freedomsite.org website. The photo of Dr. Karen Mock, the Commission's expert, was edited to portray her in a manner that she found objectionable. The Commission made known her objections and it is my understanding that by the time the hearing commenced, her photo had been removed. [9] The Commission submits that the evidence it has filed provides a reasonable ground for the fear regarding the personal and professional safety of the Commission witnesses. Yet, the special measures that the Commission is asking the Tribunal to adopt do not relate to the witnesses' security at the hearing. In a previous ruling, I made it clear to all parties that disturbances or intimidation inside or outside the hearing room would not be tolerated and that I would take appropriate measures to deal with such problems. Indeed, as has been the Tribunal's practice with regard to all s. 13 complaints, additional security measures were taken in this case. Moreover, it was evident at the hearing that the Commission had put in place additional security measures of its own with regard to counsel and its witnesses. [10] The issue therefore, for the Commission, does not seem to be security at the hearing but rather the witnesses' identities or more correctly, the capture and publication of the three witnesses' images. The Commission explains the motivation for its request as follows: That the physical appearance/identity of its employees summoned as witnesses by the Respondent be protected and not be revealed to ensure that its employees are not recognizable in their every day lives and become vulnerable when in society and/or their photos be placed on the Internet as has been the case with the experts and Mr. Warman as illustrated by the evidence in the exhibits provided. [11] Interestingly, no similar request was made when Mr. Warman and the expert witnesses testified in Toronto, although it would appear that their images could already be found on the Internet. [12] The Commission has directed me to a number of decisions where courts have ordered that special measures be taken regarding the evidence of witnesses. I note, however, that the special measures in these cases relate to the concealment of the witnesses' names. In the present case, we not only know the names of the witnesses but we also know that they are employees of the Commission. [13] The option being proposed by the Commission would result in Mr. Lemire being denied the opportunity to be in the hearing room while these witnesses testify. Section 52(1) states that the Tribunal's inquiry shall be conducted in public. The Tribunal may, on application, take measures that it considers necessary to ensure the confidentiality of the inquiry if the Tribunal is satisfied that certain conditions are present: 52. (1) An inquiry shall be conducted in public, but the member or panel conducting the inquiry may, on application, take any measures and make any order that the member or panel considers necessary to ensure the confidentiality of the inquiry if the member or panel is satisfied, during the inquiry or as a result of the inquiry being conducted in public, that there is a real and substantial risk that matters involving public security will be disclosed; there is a real and substantial risk to the fairness of the inquiry such that the need to prevent disclosure outweighs the societal interest that the inquiry be conducted in public; there is a real and substantial risk that the disclosure of personal or other matters will cause undue hardship to the persons involved such that the need to prevent disclosure outweighs the societal interest that the inquiry be conducted in public; or there is a serious possibility that the life, liberty or security of a person will be endangered. (2) If the member or panel considers it appropriate, the member or panel may take any measures and make any order that the member or panel considers necessary to ensure the confidentiality of a hearing held in respect of an application under subsection (1). 52. (1) L'instruction est publique, mais le membre instructeur peut, sur demande en ce sens, prendre toute mesure ou rendre toute ordonnance pour assurer la confidentialité de l'instruction s'il est convaincu que, selon le cas : il y a un risque sérieux de divulgation de questions touchant la sécurité publique; il y a un risque sérieux d'atteinte au droit à une instruction équitable de sorte que la nécessité d'empêcher la divulgation de renseignements l'emporte sur l'intérêt qu'a la société à ce que l'instruction soit publique; il y a un risque sérieux de divulgation de questions personnelles ou autres de sorte que la nécessité d'empêcher leur divulgation dans l'intérêt des personnes concernées ou dans l'intérêt public l'emporte sur l'intérêt qu'a la société à ce que l'instruction soit publique; il y a une sérieuse possibilité que la vie, la liberté ou la sécurité d'une personne puisse être mise en danger par la publicité des débats. (2) Le membre instructeur peut, s'il l'estime indiqué, prendre toute mesure ou rendre toute ordonnance qu'il juge nécessaire pour assurer la confidentialité de la demande visée au paragraphe (1). [14] It is important to note that the measures contemplated in s. 52 are to ensure the confidentiality of the inquiry. What is restrained, under s. 52, is the public's access to the proceedings, not a party's access. Typically, the measures adopted by the Tribunal to maintain confidentiality where warranted are those that result in the hearing being conducted in camera. [15] This is not what the Commission is seeking here. The request goes well beyond that. If granted, Mr. Lemire will be excluded from the hearing examining his own alleged conduct. He will be denied the opportunity to view the evidence. His opportunity to assist and instruct his lawyer will be restricted. Section 50(1) provides that all parties shall be given a full and ample opportunity, in person or through counsel, to appear at the inquiry, present evidence and make representations. As Mr. Justice Mackay noted in Canadian Ratio-television and Telecommunications Commission v. Canada (Human Rights Tribunal) (T.D.) (Deegan), [1991] 1 F.C. 141, at 153, (F.C.T.D.): The opportunity to present evidence and make representations implies, as I see it, the necessity to know the evidence and representations of others in order to respond with relevancy in the context of the hearing conducted by the Tribunal. [16] The reference to counsel in s. 52 is intended to assure a party of his or her right to be represented by counsel. The presence of counsel does not nullify the right of a party to be present. Each party has a right to appear at the inquiry regardless of whether he or she is represented by counsel. This right flows not only from s. 50(1) but as a matter of natural justice. [17] I note that Mr. Lemire has not been a passive participant in these proceedings even though he has been represented by legal counsel. I have observed this throughout the course of the four weeks of hearings. He has been assisting Ms. Kulaszka in all manners; he organizes the numerous documents and exhibits for her, he takes notes, he suggests questions to her, he has even made representations to the Tribunal on occasion. In this regard, I find the Court's finding in Deegan, supra at 153-4, instructive: [P]arties to a complaint should be free to attend and hear the evidence presented and without their consent should not be excluded under a general order excluding witnesses whether they represent themselves or are represented by counsel whose effectiveness should not be limited by the exclusion as a potential witness of a party who alone can instruct counsel. (emphasis added) [18] Outside of the hearing, Mr. Lemire has at times communicated directly with the Tribunal registry, particularly with regard to the organization and format of exhibits. [19] In her submissions on this motion, Ms. Kulaszka concludes that in these circumstances, Mr. Lemire should be entitled to see the witnesses and their reactions to questions, and to instruct counsel regarding any matters that arise during their testimony. I agree. I would add that I therefore see no reason why the witnesses' evidence should not be given in the physical presence of all parties, at the Tribunal's facilities in Ottawa. [20] This being said, the Commission's concerns are not without some basis. There is evidence that photos have been taken of the alleged Anti Racist Action representative while he was in attendance at another Tribunal hearing relating to a s. 13 complaint. These images were apparently later posted on the web. According to the Commission, the three witnesses fear that if their images are publicized, their ability to do their jobs investigating hate on the Internet may be compromised. Ms. Kulaszka points out that the image of at least one of the three witnesses is already available on the Internet. Nevertheless, I do not see this aspect of the Commission's request as unreasonable. I would note, however, that no evidence has been brought before me of any photos having been taken during the previous four weeks of hearings into this complaint that were later posted on the Internet. There is one exception. The webpage dealing with this case, found on the freedomsite.org website, contains photos, taken in the hearing room during a break in proceedings, of persons identified as the defence team, including Ms. Kulaszka, Paul Fromm (representing the interested party, CAFE) and Mr. Lemire. [21] In all of the circumstances, I therefore order that no person be allowed to bring into the hearing room, cameras of any sort including computer cameras, video cameras and camera-phones. The capturing of any visual image will be forbidden. I direct the Tribunal Registry to take the necessary measures for the enforcement of this order. [22] The Commission, on a secondary point, requests an order that all questions to be asked of the witnesses fall within the strict parameters of the constitutional question in issue to the exception of Hannya Rizk who would also be asked questions regarding her investigation of the present complaint. [23] This request is denied. Any objections that may be raised by the parties regarding the scope of the evidence of these witnesses will be dealt with by the Tribunal as they arise. [24] The Commission's motion as presented is dismissed. Signed by Athanasios D. Hadjis OTTAWA, Ontario May 7, 2007 PARTIES OF RECORD TRIBUNAL FILE: T1073/5405 STYLE OF CAUSE: Richard Warman v. Marc Lemire RULING OF THE TRIBUNAL DATED: May 7, 2007 APPEARANCES: Richard Warman For himself Giacomo Vigna For the Canadian Human Rights Commission Barbara Kulaszka For the Respondent Simon Fothergill For the Attorney General of Canada Paul Fromm For the Canadian Association for Free Expression Douglas Christie For the Canadian Free Speech League Joel Richler For the Canadian Jewish Congress Steven Skurka For the Friends of Simon Wiesenthal Center for Holocaust Studies Marvin Kurz For the League for Human Rights of B'nai Brith

2007 CHRT 17

CHRT

Montreuil v. Canadian Forces

en

2007-05-08

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7049/index.do

2023-12-01

Montreuil v. Canadian Forces Collection Canadian Human Rights Tribunal Date 2007-05-08 Neutral citation 2007 CHRT 17 File number(s) T1047/2805 Decision-maker(s) Deschamps, Pierre Decision type Ruling Decision status Interim Grounds Disability Sex Decision Content Between: Micheline Montreuil Complainant - and - Canadian Human Rights Commission Commission - and - Canadian Forces Respondent Ruling Member: Pierre Deschamps Date: May 8, 2007 Citation: 2007 CHRT 17 Table of Contents I. Introduction. II. The Parties’ Positions. A. The Commission. B. The respondent C. The complainant III. Analysis. A. The privileges. (i). Solicitor-client privilege or the litigation privilege. (ii). The litigation privilege or immunity from disclosure. B. The experts’ reports. (i). The documents used by experts in preparing their reports. (ii). The preliminary reports or draft reports. IV. Conclusion. V. Decision. I. Introduction [1] Through its motion, the Commission is requesting that the respondent, the Canadian Forces, disclose or produce notes, documents and drafts relating to an expert’s report prepared by Dr. Pierre Assalian for these proceedings. Specifically, the Commission is seeking the disclosure or production of a preliminary report allegedly prepared by Dr. Assalian and submitted to the respondent’s counsel before April 24, 2006. [2] For its part, the respondent is objecting to the disclosure of these documents on the grounds that they are subject to solicitor-client privilege and litigation privilege. [3] During his testimony on his qualifications as an expert, Dr. Assalian testified about the preparation of the reports he had been called to write for these proceedings. [4] Dr. Assalian explained that, during a meeting in the autumn of 2005, the respondent’s counsel, Mr. Morissette, mandated him to review the documents to determine whether the Canadian Forces were justified in imposing an employment limitation on Ms. Montreuil because of gender dysphoria. [5] Dr. Assalian then explained that in early 2006, he received the documents that he had to assess and that he subsequently prepared a report or preliminary report in accordance with the mandate given to him. [6] According to Dr. Assalian, the draft had been prepared in March or April 2006 and sent by e-mail to the respondent’s counsel, Mr. Lamb. Dr. Assalian stated that, after sending his draft report or preliminary report to the respondent’s counsel, he had asked to meet with him in order to discuss the document. [7] Dr. Assalian stated that when he met with the respondent’s counsel, he had indicated that he wanted to perform a clinical assessment of the complainant, which the respondent’s counsel agreed to. [8] Called to explain the reasons for his request, Dr. Assalian stated that he could have been satisfied with an assessment based on the documents, but that he considered it was important to perform a clinical assessment in order to confirm his assessment, as he was of the opinion that this matter was a high profile case, to use his words, and foresaw a challenge if there were a documentary analysis without a clinical examination. [9] Dr. Assalian, accompanied by two colleagues, therefore proceeded on May 18, 2006, with a clinical assessment of the complainant. On June 21, 2006, Dr. Assalian gave the respondent’s counsel a report signed by him. This report appears to have been written based on the documentation provided by Ms. Montreuil, the interview of May 18, 2006, as well as the MMPI-2 test that Ms. Montreuil has had to take. [10] It appears therefore from Dr. Assalian’s testimony that he wrote a first report that he sent to the respondent’s counsel before April 24, 2006, and that on June 21, 2006, he produced a second report following the clinical assessment of Ms. Montreuil. [11] During his testimony, Dr. Assalian stated that he no longer had his written notes regarding the complainant’s assessment, as they were destroyed after the expert report was written. He also stated that he had not kept his working documents and that he did not have a medical file on Ms. Montreuil. [12] Based on Dr. Assalian’s testimony, it therefore appears that the only document in issue is the draft report or the preliminary report prepared by Dr. Assalian, submitted to the respondent’s counsel prior to April 24, 2006. II. The Parties’ Positions A. The Commission [13] The Commission argues, firstly, that the draft report or preliminary report written by Dr. Assalian prior to April 24, 2006, should be communicated or disclosed to it. According to the Commission, that document is potentially relevant to the issues and, on that basis, it is a document which ought to be disclosed to it. On that point, it relies on the Tribunal’s Rules of Procedure, specifically paragraph 6(1)(d). [14] Secondly relying on a decision by the Supreme Court of British Columbia in Vancouver Community College v. Phillips, Barratt, [1987] B.C.J. No. 3149, the Commission argues that, so long as experts limit themselves to their role as a party’s adviser, all of the documents that they have in their possession remain privileged and the opposing party cannot require their disclosure. However, as soon as experts are called as a witness, their role changes and their opinions and their sources cannot be considered privileged. The Commission also relies on a certain number of other decisions to the same effect. [15] Moreover, the Commission argues that solicitor-client privilege does not apply in this case, that the applicable rules are those which apply to litigation privilege and that according to these rules, the draft reports or the preliminary reports produced by an expert are not confidential when the expert is called as a witness. B. The respondent [16] For its part, the respondent is objecting to the disclosure or production of the preliminary report prepared by Dr. Assalian before April 24, 2006, on the grounds that it is protected by solicitor-client privilege, which is disputed by the Commission. [17] The respondent relies, inter alia, on the fourth paragraph of section 50 of the Canadian Human Rights Act, R.S. 1985, c. H-6, which reads as follows: The [Tribunal] may not admit or accept as evidence anything that would be inadmissible in a court by reason of any privilege under the law of evidence. It also relies on section 40 of the Canada Evidence Act, R.S. 1985, c. C-5, which reads as follows: In all proceedings over which Parliament has legislative authority, the laws of evidence in force in the province in which those proceedings are taken, including the laws of proof of service of any warrant, summons, subpoena or other document, subject to this Act and other Acts of Parliament, apply to those proceedings. [Emphasis added.] [18] On this point, the respondent argues that in this case, Quebec evidence law must be applied even though the dispute is one that falls within the purview of a federal statute, namely the Canadian Human Rights Act, supra, and even though there may be resulting discrepancies at the provincial level regarding the applicable rules of evidence. [19] Moreover, the respondent argues that in Quebec law, an expert’s drafts, notes, and preliminary reports are protected by solicitor-client privilege. The respondent is relying primarily on the decision by the Court of Appeal of Québec in Poulin v. Prat, [1994] A.Q. No. 142. In this decision, the Court of Appeal of Québec clearly established that a party cannot require the production of an expert’s pre-trial reports, notes, or preliminary drafts and that these documents are covered by solicitor-client privilege. C. The complainant [20] The complainant in essence espouses the Commission’s position. III. Analysis [21] From the outset, it should be pointed out that this is not an issue about the disclosure of documents in the possession of a party, documents that the party would be required to disclose under paragraph 6(1)(d) of the Tribunal’s Rules of Procedure. Accordingly, my colleague Jensen’s decision on a motion for disclosure of documents filed by the Commission is not applicable given that the issue in this case is not one of disclosure but rather one of production of documents. [22] Experts’ reports and accompanying documents should not be considered documents in a party’s possession within the meaning of paragraph 6(1)(d) of the Tribunal’s Rules of Procedure, documents a party would be required to disclose. [23] In any case, a distinction should be made between documents that are in a party’s possession when litigation arises and documents created for a proceeding for the purposes of the litigation. The experts’ reports and, where applicable, all of the related pre-trial versions, must, in this respect, be considered as documents created specifically for litigation purposes and not as related documents in the possession of a party when litigation arises. [24] Considering the experts’ reports as documents in the possession of a party would mean that in cases where a party obtained an expert’s report for guidance without intending to file it or having the expert testify, the party would be required to disclose it to the opposing party. This can not be the scope of paragraph 6(1)(d) of the Tribunal’s Rules of Procedure. [25] The rules under section 6 of the Rules of Procedure apply to documents in the possession of a party when the litigation arises which could be potentially relevant to the issues. [26] In this case, it is rather a matter of determining whether a party can require the production of a document prepared by an expert, be it a draft report or even a preliminary report, in the course of preparing an expert’s report. [27] More specifically, the issue in this case is whether the document prepared by Dr. Assalian prior to April 24, 2006, in accordance with the mandate conferred to him by the respondent, is protected by solicitor-client privilege or litigation privilege. [28] If the document falls under solicitor-client privilege, it is protected and the Commission cannot have access to it. If the document falls under litigation privilege, the Commission could have access to it. It is therefore important to examine the meaning and the scope of these two concepts of solicitor-client privilege and litigation privilege. A. The privileges [29] The Commission argues that a distinction should be made between solicitor-client privilege and litigation privilege. It is correct. In Canadian law, the courts nowadays distinguish solicitor-client privilege and litigation privilege, in Quebec civil law as well as in common law; these privileges are subject to different rules of application. (i) Solicitor-client privilege or the litigation privilege [30] In Quebec, in Foster Wheeler Power Co. v. Société intermunicipale de gestion et d'élimination des déchets (SIGED) Inc., [2004] 1 S.C.R. 456, the Supreme Court of Canada held that, in Quebec’s statutory framework, the term professional secrecy includes solicitor-client privilege as well as litigation privilege. [31] According to the Court, professional secrecy contemplates both the duty of confidentiality imposed on counsel with regard to their client and immunity from disclosure that protects the content of information against compelled disclosure in regard to third parties (Foster Wheeler Power Co. v. Société intermunicipale de gestion et d'élimination des déchets (SIGED) Inc., paragraph 29). [32] Thus, solicitor-client privilege or, more narrowly in civil law, counsel’s duty of confidentiality toward their client, covers in essence the verbal and written communications exchanged between counsel and their client. These communications are considered privileged and a party cannot require their production or their disclosure (See, to the same effect, Poulin v. Prat, [1994] A.Q. No. 142). [33] That said, even if in Quebec law both privileges are included in the privilege of professional secrecy, the two parts must nonetheless be distinguished from one another, according to the Supreme Court (Foster Wheeler Power Co., supra). [34] With regard to the common law, the Supreme Court determined in Blank v. Canada (Minister of Justice), [2006] S.C.J. No. 39, paragraph 7) that for the purposes of the legal analysis, it is important to consider solicitor-client privilege and litigation privilege as distinct concepts and not as two components of a single concept. These two privileges are subject to different legal rules. (ii) The litigation privilege or immunity from disclosure [35] In Quebec civil law, immunity from disclosure, equivalent to the common law’s litigation privilege, is considered a component of solicitor-client privilege (see to this effect: Foster Wheeler Power Co., supra, paragraphs 1 and 15). As stated earlier, both concepts are nevertheless distinct and subject to different rules of application. [36] To the contrary, in common law, the Supreme Court determined in Blank v. Canada (Minister of Justice, supra, paragraph 7) that litigation privilege differs from solicitor-client privilege in terms of their scope, their objective and their different sources. It should be noted here that in Blank, the Supreme Court did not refer at all to the decision in F oster Wheeler Power Co. [37] According to Blank, litigation privilege applies to non-confidential communications between counsel and third parties and even includes documents that are not communications in nature (Sharpe, cited in Blank, at paragraph 28: see also Vancouver Community College v. Phillips, Barratt, supra, Jesionowski v. Gorecki, [1992] F.C.J., No. 816. It exists independently of solicitor-client privilege. [38] Having established the differences between solicitor-client privilege and litigation privilege, it is now necessary to determine whether the document Dr. Assalian gave to the respondent’s counsel prior to April 24, 2006, in relation to the mandate conferred to him by the respondent, falls under the privilege of solicitor-client privilege or whether it is protected or not by the litigation privilege. It is necessary to examine this issue in light of the rules of evidence governing the production of experts’ reports, in civil law as well as at common law. B. The experts’ reports [39] With regard to experts’ reports, a distinction should be made, on the one hand, between the documents used by experts for writing their reports, which are documents relevant to the expert’s cross-examination and, on the other hand, the draft report or preliminary report prepared by experts in fulfilling the mandate given to them by a party. [40] From the outset, it should be pointed out that, in this case, the Commission is not trying to obtain the documents relied on to prepare Dr. Assalian’s report, regarding which he will be examined, but the preliminary report or the draft report which he sent to the respondent’s counsel prior to April 24, 2006. (i) The documents used by experts in preparing their reports [41] Once a physician is called as an expert and his or her report has been filed in evidence, a party is entitled to obtain a copy of all of the documents which were used to prepare the report – the documentary sources of his or her report. This is necessary so that the counsel cross-examining the expert can, with respect to the report filed, fully assess the facts and issues of the expert’s reasoning in regard to the report filed, as well as the expert’s intellectual process. [42] Once a party has filed an expert’s report in evidence, this party may not keep any part of the report confidential. This is what stems from the Supreme Court of Canada’s decision in R. v. Stone, [1999] 2 S.C.R. 290, paragraph 98. [43] Moreover, experts will be bound to make available to the opposing party all of the documents in their possession relied on to prepare their report. This stems from the decision rendered by the Supreme Court of British Columbia in Vancouver Community College v. Phillips, Barratt, supra, paragraph 34. It is important to note that this decision does not specifically refer to an expert’s draft reports or preliminary reports, but refers in a broader sense to the documents in the expert’s possession. [44] As pointed out by the British Columbia Supreme Court in Vancouver Community College and the Supreme Court of Canada in R. v. Stone, when experts are asked to testify, parties waive any privilege connected to the report. According to the Court, once a witness takes the stand, he/she can no longer be characterized as offering private advice to a party. They are offering an opinion for the assistance of the court. As such, the opposing party must be given access to the foundation of such opinions to test them adequately (paragraph 99). (Emphasis added.) [45] More recently, R. v. Stone was applied in the decision by the Court of Appeal for Ontario in Horodynsky Farms Inc. v. Zeneca Corp. (c.o.b. Zeneca Agro), [2006] O.J. No. 3012. In this decision, a judge of the Court of Appeal for Ontario who was called to interpret the scope of subsection 31.06(3) of Ontario’s Rules of Civil Procedure, held that a memorandum prepared by counsel after a conversation with an expert who had later filed a report should have been given to the opposing party and that the memorandum was not protected by the litigation privilege. [46] According to the Court, this memorandum could be included in the observations, opinions and conclusions referred to in subsection 31.06(3) of the Rules of Civil Procedure. In obiter, Mr. Justice Gillese of the Court of Appeal was of the opinion that an expert’s draft reports fell under the purview of subsection 31.06(3) of Ontario’s R ules of Civil Procedure. [47] That said, it appears to us that this decision is of limited scope and cannot be considered a statement of general principle to the extent that it focuses on the interpretation of the meaning of the words findings, conclusions or opinions which are found in subsection 31.06(3) of Ontario’s Rules of Civil Procedure and because the document at issue was a memorandum. [48] In Quebec, the Court of Appeal of Québec held in Poulin v. Prat, supra, that [Translation] a party is entitled to know the facts on which the expert has based his or her opinion. According to the Court, a party is entitled to know the facts on which the expert based his or her opinion. From this perspective, a party certainly has the right to know the sources, documentary or otherwise, where the expert drew this information. However, . . . the party cannot compel the expert to produce notes, drafts, or preliminary reports which led to the preparation of the expert’s final report (paragraph 34). [49] These different decisions indicate that once an expert is called as a witness, the expert can be required to produce any document used to prepare his or her report and be examined on these documents. The opposing party is, in fact, entitled to know the documentary sources for the expert’s report and to require that the expert produce all of the documentation used to prepare the report. The party producing the expert then waives the litigation privilege, whether it is incorporated in the solicitor-client privilege or not, as is the case in Quebec. [50] In this case, therefore, the complainant and the Commission will be entitled, during their cross-examination of Dr. Assalian, to ask him to produce all of the documents that he used in fulfilling the mandate conferred to him by the respondent, unless those documents are already in their possession. (ii) The preliminary reports or draft reports [51] It appears that in common law, certain decisions suggest that the draft reports prepared by an expert called to testify in a proceeding are not covered by the litigation privilege and that a party can require their production. This stems from an obiter by Gillese J.A. of the Court of Appeal for Ontario in Horodynsky Farms Inc. v. Zeneca Corp. (c.o.b. Zeneca Agro), supra, paragraph 38. [52] Similarly, in Chapman Management & Consulting Services Ltd v. Kernic Equipment Sales Ltd, [2004] A.J. No. 756, Mr. Justice McIntyre of Alberta’s Court of Queen’s Bench held, relying inter alia on the decision in Vancouver Community College, supra, that the defendant had to produce its expert’s drafts as well as all documents in the expert’s possession which were used to elaborate his opinion (paragraph 2). [53] That said, there does not appear to be unanimity at common law regarding the production of draft reports, notes or preliminary reports relating to the testimony of an expert in a given proceeding. In fact, at common law, there is case law where the courts refused to follow the approach adopted in Vancouver Community College, supra, and considered experts’ drafts and preliminary reports privileged and protected by the litigation privilege (see, for example, Kelly v. Kelly, [1990] O.J. No. 603), Bell Canada v. Olympia & York Developments Ltd. et al., 68 O.R. (2d) 103, Highland Fisheries Ltd v. Lynk Electric Ltd, 63 D.L.R. (4th) 493). [54] In this context, one cannot claim that the state of law in common law in matters involving the production of draft reports, notes or preliminary reports is clear and simple, with no room for differing points of view. The decision in Vancouver Community College, supra, does not seem to have as much authority as the Commission seems to assign to it. Besides, the decision in Vancouver Community College, supra, did not bear specifically on the production of draft reports or preliminary reports but rather on documents in the possession of an expert which were relied on in preparing the expert’s report. [55] In Quebec civil law, the Court of Appeal, for its part, has held several times that notes and rough drafts, drafts and preliminary reports produced by an expert are included in solicitor-client privilege and that they cannot be produced in evidence at the request of the opposing party (Poulin v. Prat, supra, Laviolette v. Bouchard, [2001] J.Q. No. 3642). [56] In Poulin v. Prat, the Court of Appeal expressed the opinion that [Translation] when counsel, in preparing to defend the interests of a client, hires an expert, he is only acting as an agent for his client (paragraph 22). For the Court, the written as well as the verbal communications between counsel and the expert, except under particular circumstances, remain confidential and are protected by solicitor-client privilege (paragraphs 22 and 26). [57] Moreover, for the Court of Appeal, [Translation] producing an expert as a witness must not enable the opposing party to require this witness to produce everything in the expert’s possession such as notes, drafts and preliminary reports that the expert could have gathered and written while he was assessing the file and the thought process which led to the formulation of the final opinion that the expert is called to share with the court (Poulin v. Prat, supra, paragraph 27). [58] In Poulin v. Prat, the Court found that the documents sought in that case, exchanged between counsel and the expert, were confidential and protected by solicitor-client privilege (paragraph 31). [59] It therefore appears that in Quebec, the law which applies to the production of an expert’s draft reports, projects of report or preliminary reports is much more clear if we consider the decisions by the Court of Appeal in Poulin v. Prat, supra, and Laviolette v. Bouchard, supra. Under these circumstances, the case law of the Court of Appeal must be considered as decisive regarding the production of an expert’s draft reports, projects of report or preliminary reports. [60] In conclusion, it is important to point out that if seeking the truth is at the heart of every legal dispute, one must however accept that the expert whose services are retained by a party be able to fulfill the mandate conferred by that party without restraint. Experts must be able to develop their opinions and formulate their findings without fearing that third parties could at any time come and capture ideas and words that they wrote down at a time when they were still in the process of analyzing and reasoning and had not formed a final opinion on an issue. [61] It is important that experts rest assured that their intellectual process will not be scrutinized by third parties. One can already imagine that a good number of experienced experts do not keep drafts of their report or written notes, for fear that these documents will fall into the hands of the court, thereby publicly revealing their intellectual process, likely to evolve according to the information gathered and periods of reflection spent reviewing a matter. [62] That said, the fact remains that the expert who is called to testify in a given proceeding and who files a report should produce all of the documents relied on in preparing the report when so requested by a party. This party is entitled to examine the expert on all of the elements relied on in preparing the report. The Tribunal will then have to assess the objectivity and the soundness of the expertise produced. Moreover, a party will always be able to dispute the validity of an expert’s opinions and findings during the party’s cross-examination of the expert or by calling their own expert who could have points of view which differ from those expressed by the expert. Medicine is both a science and an art. [63] Surely, there is always a risk that experts could misunderstand their role as experts and think that they are there to serve the interests of the party calling them as witnesses. There is also a risk that the experts could let themselves be influenced by the remarks of counsel who retain their services or that they agree to change their findings or assessments at the request of counsel. A skilled cross-examination will often expose the shortcomings of an expert’s report that is not objective. IV. Conclusion [64] The Tribunal finds that the report sent by Dr. Assalian to the respondent’s counsel before April 24, 2006, is protected by solicitor-client privilege and therefore must be considered confidential. It cannot therefore be admitted in evidence in accordance with subsection 50(4) of the Canadian Human Rights Act. V. Decision [65] For the reasons stated above, the Commission’s motion for the production of documents or the disclosure of the draft report or the preliminary report submitted to the respondent’s counsel by Dr. Assalian before April 24, 2006, is dismissed. Signed by Pierre Deschamps Tribunal Member Ottawa, Ontario May 8, 2007 Canadian Human Rights Tribunal Parties of Record Tribunal File: T1047/2805 Style of Cause: Micheline Montreuil v. Canadian Forces Ruling of the Tribunal Dated: May 8, 2007 Date and Place of Hearing: May 3 and 4, 2007Québec, Quebec Appearances: Micheline Montreuil, for herself Ikram Warsame, for the Canadian Human Rights Commission Guy Lamb and Claude Morissette, for the Respondent

2007 CHRT 18

CHRT

Gagné v. Canada Post Corporation

en

2007-05-10

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7052/index.do

2023-12-01

Gagné v. Canada Post Corporation Collection Canadian Human Rights Tribunal Date 2007-05-10 Neutral citation 2007 CHRT 18 File number(s) T1182/6406 Decision-maker(s) Hadjis, Athanasios Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE RAYMOND GAGNÉ Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADA POST CORPORATION Respondent RULING MEMBER: Athanasios D. Hadjis 2007 CHRT 18 2007/05/10 [1] The Respondent, Canada Post Corporation (CPC), has made a motion requesting that the Tribunal exercise its discretion to refuse to hear the present complaint on the basis that the inordinate delay in filing the complaint constitutes an abuse of process. Factual Background [2] The Complainant, Raymond Gagné, worked for CPC as a postal clerk in Toronto from November 1974 until October 1988, when he obtained a senior postal clerk position at the post office in Ladysmith, British Columbia. He alleges in his complaint that shortly after transferring into the new position, he was harassed on the basis of his ethnic origin (French Canadian) and his place of origin (which was not specified in the complaint). He refers to a number of specific incidents of verbal and physical abuse that took place between October 1988 and April 1989. [3] The next occurrences of discrimination mentioned in the complaint relate to specific incidents of alleged harassment that took place in September of 1995. He states that in December 1995, he was diagnosed with a mental illness, which he claims was to some extent caused by the harassment. When his illness worsened and required that he take medical leave from work from January to May 1996, Mr. Gagné alleges that CPC did not assist him properly in his attempt to obtain worker's compensation benefits. Upon his return to work, he claims that CPC management harassed him by excessively monitoring him due to his disability. [4] He also alleges that his co-workers were permitted to harass him by spreading false rumours about his illness and making other efforts to worsen his state of health. Mr. Gagné contends that the level of harassment so affected his mental health that he needed to be hospitalized. His illness prevented him from attending work, as a result of which CPC dismissed him from his employment in August 2000. [5] Mr. Gagné did not file his human rights complaint with the Canadian Human Rights Commission, however, until May 5, 2004. The Commission referred the complaint to the Tribunal on November 27, 2006. [6] Thus, CPC alleges that the length of time from the dates of the alleged discriminatory practices (1988 to 2000) to the present time (2007) is inordinate and constitutes an abuse of process, which warrants the exercise by the Tribunal of its discretion to refuse to hear the complaint. Analysis [7] The Commission decided, pursuant to s. 41(1)(e) of the Canadian Human Rights Act, to deal with Mr. Gagné's complaint even though the last alleged discriminatory act took place over one year prior to the filing of his complaint (in fact, about 45 months prior thereto). The Tribunal does not have the jurisdiction to review this Commission decision. This power rests with the Federal Court (see I.L.W.U. (Marine Section) Local 400 v. Oster, [2002] 2 F.C. 430 (T.D.) at paras. 25-31). [8] However, if the entire pre-hearing delay, from the earliest alleged discriminatory acts until the hearing, is so long that the respondent's right to a fair hearing is compromised, the Tribunal has the authority to remedy the situation (see Desormeaux v. Ottawa Carleton Regional Transit Commission (2002 July 19) T701/0602 (C.H.R.T.) at para. 13; Cremasco v. Canada Post Corporation (2002 September 30) T702/0702 (C.H.R.T.) at para. 71, aff'd on other grounds Canada (Human Rights Commission) v. Canada Post Corporation, [2004] 2 F.C.R. 581 (F.C.)). As the Tribunal in Cremasco noted at paragraph 74, this is in keeping with common sense: a board or tribunal must have some capacity to protect itself from litigants who use its process improperly. [9] The leading Supreme Court decision in relation to delay in the context of human rights cases is Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, 2000 SCC 44. The Court noted, at para. 101, that delay, without more, will not warrant a stay of proceedings as an abuse of process at common law, adding that in the administrative law context, there must be proof of significant prejudice which results from an unacceptable delay. The Court went on to state, at para. 102, that where delay impairs a party's ability to answer the complaint against him or her, because, for example memories have faded, essential witnesses have died or are unavailable, or evidence has been lost, then administrative delay may be invoked to impugn the validity of the administrative proceedings and provide a remedy. [10] In the present case, only a relatively small portion of the period can be attributed to any administrative delay in the Commission's handling of the complaint. The complaint was filed in May 2004 and the matter was referred to the Tribunal in November 2006, a period of 30 months. In its submissions on the motion, CPC did not take issue with the length of time that has passed since the complaint was filed. It is the pre-filing delay with which CPC takes issue. That being said, the principles articulated by the Supreme Court that I have cited above, remain, in my view, applicable. To warrant remedial action from the Tribunal, there must be proof of significant prejudice resulting from the unacceptable delay, which impairs the respondent's ability to answer the complaint. [11] Mr. Gagné worked with a number of CPC employees who could address his allegations. CPC does not affirm in its submissions that any of them have since died. At least seven of them have resigned or retired from CPC. Interestingly, Mr. Gagné points out that of those seven, five had already left CPC when he was dismissed. Thus, even if he had filed his complaint immediately after his dismissal, any issues regarding a party's ability to track down these individuals for the purposes of this case would have already arisen to some extent. In any event, I am not of the view that merely because potential witnesses have retired and perhaps moved away from their original place of employment, they will inevitably be untraceable and therefore, unavailable for a hearing. While trying to find these witnesses may pose a challenge, it is not necessarily an impossible task, and it is in my view not sufficient cause to conclude at this early stage that a respondent's ability to answer the complaint is so impaired as to justify the Tribunal's refusing to conduct a hearing into the complaint. [12] Nor is there any indication at this stage that the witnesses' memories have necessarily faded in this case. It should be noted that the bulk of the incidents alleged in the complaint occurred between 1996 and 2000, i.e. between eleven and seven years ago. This would not be the first case before the Tribunal to have received testimony regarding incidents that date back a similar length of time (see e.g. Uzoaba v. Canada (Correctional Service), (1994), 26 C.H.R.R. D/361 (C.H.R.T.); Sugimoto v. Royal Bank of Canada, 2007 CHRT 5). I cannot therefore presume a priori, as CPC suggests, that its ability to provide evidence in answer to the allegations of the complaint has been compromised. As the Tribunal noted in Bozek v. M.C.L. Ryder Transport Inc., 2002 CanLII 45937 (C.H.R.T.), at paras. 21-2, evidentiary prejudice must be proven. [13] In setting out some of the difficulties it faces in preparing its answer to the complaint, CPC raises the absence of sufficient particulars in the complaint, which prevents it and its witnesses from being able to recall these allegedly discriminatory incidents that occurred between 18.5 and seven years ago. This strikes me as a matter that can be addressed through the Tribunal's disclosure process. If CPC believes Mr. Gagné's Statement of Particulars, which includes witness will-say statements, is insufficient and that further disclosure is required pursuant to the Tribunal's Rules of Procedure, CPC may make a motion to that effect. This is not a ground to justify a refusal by the Tribunal to hear the complaint. [14] Thus, just as in the lower court's finding that the Supreme Court adopted in Blencoe at para. 104, I find in the present case that the delay is not such that it would necessarily result in a hearing that lacks the essential elements of fairness. Proof of prejudice in the evidentiary sense has not been demonstrated to be of sufficient magnitude to impact on the fairness of the hearing. [15] The Court in Blencoe, however, recognized that there may be cases of abuse of process for other than evidentiary reasons brought about by delay (at para. 115). The delay must be clearly unacceptable and have directly caused a significant prejudice to amount to an abuse of process. It must be a delay that would, in the circumstances of the case, bring the human rights system into disrepute. [16] In the present case, while the delay is very long, particularly when taking into account the date of the first alleged discriminatory acts of October 1988, I am not convinced that it was unacceptable to the point of being so oppressive as to taint the proceedings (Blencoe at para. 121). The Court points out, in Blencoe at para. 122, that the determination of whether a delay has become inordinate depends on the nature of the case and its complexity, the facts and issues, the purpose and nature of the proceedings, whether the respondent contributed to or waived the delay, and other circumstances of the case. [17] Based on the allegations in the complaint form, Mr. Gagné appears to be claiming that he was harassed at the workplace, which contributed to the development of his disability, and was in turn a factor in the decision to dismiss him. Cases of discrimination are different from typical civil cases, such as the one relating to contract law to which CPC alluded in its submissions (Woodheath Developments Ltd. v. Goldman (2001), 56 O.R. (3d) 668 (S.C.J.)). In cases of discrimination, it is not uncommon for the discriminatory practice to be of an ongoing nature, particularly where harassment has been alleged. Tribunals have recognized that victims of discrimination will not always immediately perceive a respondent's acts as being discriminatory. [18] Moreover, depending on the circumstances, individual acts may not necessarily amount to harassment, within the meaning of the Act, unless they are repeated over time (see Canada (Human Rights Commission) v. Canada (Armed Forces) (Franke), [1999] 3 F.C. 653 (T.D.)). In harassment cases, the employer's efforts to prevent harassment or its response to acts of harassment will also frequently be in issue (see s. 65(2) of the Act). In determining whether an employer has acted promptly and properly in all of the circumstances of a given case, the previous knowledge of an employer as to the vulnerability of a particular employee may well be germane (Uzoaba, supra, at para. 17). Thus, evidence that may stretch over a fairly extensive period of time may be relevant. [19] Part of the delay in the present case is attributable to the forty-five months that Mr. Gagné took before filing his complaint. Mr. Gagné claims that his medical condition was a factor in his failing to file the complaint sooner, and he has produced a letter from a physician in support of this contention. CPC disputes this claim and has submitted a letter from a psychiatrist contradicting some of the findings of Mr. Gagné's physician. CPC argues that Mr. Gagné's health did not prevent him from filing his complaint within the one year period contemplated in s. 41(1)(e) of the Act. [20] As I have already stated, the Tribunal has no jurisdiction to review Commission decisions to deal with complaints beyond the one-year period. If a party disagrees with the Commission's decision in the present case and wants it reviewed, the Federal Court would be the appropriate forum. Moreover, to the extent that this matter is being raised before the Tribunal as a matter of abuse of process, it is, in my view, inappropriate for the Tribunal to make any findings with respect to expert evidence and other factual issues in dispute without the benefit of a full evidentiary record. The Tribunal should not be drawing any conclusions that could result in the dismissal of a human rights complaint on the basis of a couple of letters written by medical professionals whose expertise has not even been established before the Tribunal and whose evidence has not been heard and tested through cross-examination. [21] Furthermore, it would appear, based on some of the documents filed by the parties regarding the present motion, that Mr. Gagné did in fact take action against his employer in response to his dismissal. On October 10, 2002, he filed a grievance through his union, alleging that he had been discharged without just, reasonable or sufficient cause. He asked for his reinstatement. Apparently, the union did not deal with the matter to Mr. Gagné's satisfaction, and on May 28, 2003, he filed a complaint with the Canada Industrial Relations Board alleging that his union was in breach of its duty of fair representation, pursuant to s. 37 of the Canada Labour Code. This is not therefore a case of a complainant who simply did nothing in response to the last alleged discriminatory act (the dismissal), before filing his human rights complaint. [22] In conclusion, given the context and circumstances of this case, I am not convinced that the delay is inordinate. This is not to say that all of the evidence to be introduced regarding the 1988-89 incidents or any of the subsequent events must necessarily be taken into consideration by the Tribunal in adjudicating the complaint on its merits. It may become evident at the hearing that the recollections of the witnesses are hazy or perhaps non-existent, given the passage of time and the nature of the events in relation to which they testified. Key documents may no longer be available. CPC could therefore argue that the Tribunal should not allow any evidence relating to these events to form part of its decision. This was in effect what the Tribunal in Uzoaba, supra, at D/368-9, decided with respect to evidence led at the hearing of incidents that had occurred as many as 19 years prior to the hearing. [23] CPC's motion is therefore dismissed, without prejudice to CPC's right to later argue that the Tribunal should not take into account evidence relating to one or more given incidents that have been alleged in the complaint. Signed by Athanasios D. Hadjis OTTAWA, Ontario May 10, 2007 PARTIES OF RECORD TRIBUNAL FILE: T1182/6406 STYLE OF CAUSE: Raymond Gagné v. Canada Post Corporation RULING OF THE TRIBUNAL DATED: May 10, 2007 APPEARANCES: Michael R. Scherr For the Complainant No one appearing For the Canadian Human Rights Commission Norman K. Trerise For the Respondent

2007 CHRT 19

CHRT

St. John v. Canada Post Corporation

en

2007-05-15

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7048/index.do

2023-12-01

St. John v. Canada Post Corporation Collection Canadian Human Rights Tribunal Date 2007-05-15 Neutral citation 2007 CHRT 19 File number(s) T1124/0606 Decision-maker(s) Jensen, Karen A. Decision type Decision Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE JIM ST. JOHN Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADA POST CORPORATION Respondent REASONS FOR DECISION MEMBER: Karen A. Jensen 2007 CHRT 19 2007/05/15 I. INTRODUCTION II. FACTS A. Low Mail Volume at the EMPP B. CPC's Practice Regarding the Reassignment of Work to Disabled Employees during Periods of Low Mail Volume C. The No Lay-Off Rule D. The Practice Regarding Use of Leave Provisions in the Collective Agreement III. ANALYSIS A. What was the practice that allegedly violated s. 10(a) of the Act? B. The Allegations (i) The Opportunity to Perform Work and to Be Paid Regular Wages (ii) Denial of Access to the No Lay-off Rule (iii) Choice of Leave Provisions IV. REMEDY I. INTRODUCTION [1] On June 20, 2003, Mr. Jim St. John filed a complaint against Canada Post Corporation (Canada Post or CPC) alleging that CPC had discriminated against him in employment on the basis of his disability by treating him in an adverse differential manner, contrary to section 7 of the Canadian Human Rights Act. Specifically, Mr. St. John complained that Canada Post sent him home from work early on May 27, 2003, claiming that there was no work for him to do within his restrictions. Canada Post then made use of Mr. St. John's sick leave credits to compensate him for the lost wages he incurred. [2] Mr. St. John further alleged that in May 2003, Canada Post was engaging in a discriminatory policy or practice, as those terms are used in s. 10 of the Act, when it sent him and three other disabled employees home early from the Edmonton Mail Processing Plant (EMPP) and paid them from their sick leave credits on May 27, 2003. On that day, Canada Post was experiencing a period of low mail volume. Mr. St. John complained that this was the second time he had been sent home from work as a result of low mail volume. The first time was in 2001. [3] The Canadian Human Rights Commission fully participated in the hearing into this matter. The Commission called a number of witnesses including the Complainant, Mr. St. John, and several union representatives. The Respondent, Canada Post, called one witness: Ms. Darlene Swabb, the manager of the section of the EMPP in which Mr. St. John worked in May 2003. [4] During the hearing of this matter, the parties reached a settlement with respect to the section 7 portion of the complaint. The parties, however, indicated that they wished to have the section 10 complaint heard and determined by this Tribunal. The issue in this decision, therefore, is quite simply: in May of 2003, was Canada Post pursuing a policy or practice that deprived or tended to deprive Mr. St. John and other employees with disabilities of employment opportunities on the basis of a prohibited ground of discrimination? II. FACTS [5] Mr. Jim St. John is a full-time postal clerk (PO-3) at the Canada Post Mail Processing Plant in Edmonton (the EMPP). He works the day shift at the EMPP. Although there was some confusion with respect to the exact times of the shift, it would appear that in 2003, the day shift at the EMPP was from 7 a.m. to 3 p.m. Mr. St. John is a member of a bargaining unit represented by the Canadian Union of Postal Workers (CUPW). [6] Mr. St. John is disabled; he suffers from bipolar mood disorder and has lower back and knee problems. Mr. St. John has been designated by CPC as having permanent partial disabilities (PPD's). [7] As a result of his PPD status, from 1995 onward Mr. St. John has been accommodated in the Forward Letters section of the Communication Value Stream (Communications) in the EMPP. Forward Letters is where all of legal-sized and normal-sized envelopes are sorted and prepared for dispatch to Canada and elsewhere in the world. The Communication Value Stream is a department within Canada Post. [8] To accommodate Mr. St. John, Canada Post did not require him to work in sections other than his own, permitted him to work day shift only, and did not require him to perform any tasks that involved bending, twisting or turning with weight. These modifications were subsequently changed to permit Mr. St. John to work in other sections of the EMPP provided his other restrictions were respected. [9] On May 27, 2003, the EMPP was experiencing a period of low mail volume. As a result, there was no work for Mr. St. John and other employees in his section to perform; there was however, work to be done in other parts of the plant. A search was undertaken to find work in the EMPP that was within Mr. St. John's restrictions. None was found. [10] Therefore, at approximately 1:15 p.m., Mr. St. John and four other individuals, all of whom were disabled, were sent home from work. Canada Post management informed the employees that they were being sent home because although there was work to be done in the plant, there was no work that they were capable of doing, given their restrictions. In order to protect the employees from a loss of earnings as a result of being sent home, their sick leave credits were utilized. [11] On June 13, 2003, the union grieved the matter. The grievance was later settled. The employees' sick leave credits were reimbursed. [12] Mr. St. John filed the present human rights complaint on June 20, 2003, because he believed that there were outstanding issues that had not been dealt with through the grievance procedure. Specifically, he believed that Canada Post had not changed its practice of sending disabled employees home when there was no work within their restrictions during periods of low mail volume at the EMPP. It is Mr. St. John's view that this practice is discriminatory and he is requesting that the Tribunal issue an order requiring Canada Post to change the practice. A. Low Mail Volume at the EMPP [13] Ms. Darlene Swabb, the manager of the Communications Value Stream at the time of the events in this complaint, stated that there are times, primarily in the summer months, when the mail volume in some parts of the EMPP will drop. [14] Ms. Swabb stated that when the mail volume is low at the EMPP, Canada Post offers incentives to all employees to reduce the staff compliment that day. Above compliment vacation leave or leave without pay are offered. Once it is determined how many employees are willing to take leave and how many employees wish to remain, Canada Post reassesses the work situation and determines how to re-deploy personnel throughout the plant so that productive work can be found for all the remaining employees. [15] It is at that point that Canada Post may decide to loan or re-assign employees from one part of the plant where there is no work to another part of the plant and even to the mail depots in the Edmonton area if there is more work to be done there. [16] Article 14.19 of the Collective Agreement between the CUPW and Canada Post permits Canada Post to re-assign workers to duties in other parts of the plant when work is not available in their area. Ms. Swabb testified that the re-assignment or loaning of employees to other sections is a way of ensuring that Canada Post employees are engaged in productive work even when mail volume is low. [17] Ms. Swabb stated that if mail volumes become low half way through a shift, Canada Post will sometimes transport the workers to another facility. But within an hour or two of the end of the employees' shift it is usually not worth it to transport them to another facility given the cost of transportation and the time involved in explaining the safety procedures and duties. Ms. Swabb stated that it is a judgment call as to whether it makes sense to send workers to another facility to work. [18] Canada Post's ability to loan employees from one part of the plant to another is subject to a general prohibition against backfilling. Backfilling occurs when an employee is moved out of his or her assigned duties and is replaced by another employee. For example, if employee A, who has been assigned to sort letter mail, is moved to another section to operate a coding machine, and employee B is assigned to employee A's sortation duties, then backfilling has occurred. Loaning or reassigning employees pursuant to Article 14.19 is different from backfilling in that another worker is not assigned to do the work that was being done by the reassigned employee. Indeed, there is no reason to do so because employees are only loaned to other sections when there is no work to be done in their own section, that is, the service requirements in that section have been met. [19] Ms. Swabb testified that the Corporation is not permitted to backfill because it violates the seniority provisions of the collective agreement. Employees use their seniority rights to bid on a particular section and schedule. Ms. Swabb stated that the arbitral jurisprudence has established that an employee's bid cannot be modified on the unilateral initiative of Canada Post to backfill a position. B. CPC's Practice Regarding the Reassignment of Work to Disabled Employees during Periods of Low Mail Volume [20] In re-assigning work to employees during low mail volume periods, Canada Post must observe the restrictions that have been set out in regard to disabled employees. Disabled employees cannot be asked to do work that is not within their restrictions. Therefore, Canada Post has developed a practice regarding the accommodation of disabled employees when mail volume is low. [21] Ms. Swabb testified about the practice that was followed in the EMPP in May of 2003. She stated that although it is not written down anywhere, she did have occasion to document the practice in an electronic mail exchange that she had with Mr. John Cherry, a human resource officer with Canada Post. In that e-mail, dated June 29, 2005, Ms. Swabb indicated that the process that was followed in May of 2003 was a combination of current contractual obligations, operational requirements and her understanding of the requirements of the duty to accommodate. In the e-mail, she stated: All employees who fall under the Duty to Accommodate umbrella are discussed with the Local Union. The operation is tasked to ensure that the employees are productive during the course of their day. The following are the steps in which we follow during low mail volume periods: a) Work Section A is low or has no mail volume to process. b) Supervisor reviews other sections to see if there is a requirement for more employees to complete the work in that particular section. c) Employees are loaned to other sections as long as there is extra work to complete and the work requirements are within the employee's physical restrictions. d) We cannot move employees from section B to section C and backfill their job in section B with another employee as this process does not follow contractual obligations. e) If other sections have work and fit the employee's physical restrictions, but do not require extra staff to complete the work by shift end, then above complement vacation leave and leave without pay is offered to employees throughout the facility, including Section A, in an attempt to provide work the employees from Section A. f) When employees accept the extra vacation leave or leave without pay, employees are then loaned into the sections, within their restrictions, where there is work. g) I never encountered a scenario where there is no work in the plant for employees that do not have physical restrictions. The plant provides both light, medium, and heavy physical duties. h) If the available work is outside the physical restrictions of the modified or PPD employee, then the duty to accommodate is no longer available and the employee is sent home to utilize their sick leave benefits. This is no different as when the employee gets initially injured and no work is available at that time, as a result, they stay at home on sick leave or disability insurance until the Corporation has work for accommodation. [sic throughout] [22] The e-mail correspondence also noted that the union is notified before a modified/PPD employee is sent home when no work is available within his or her restrictions. The union then, at times, will review the plant status and provide options if any are available. [23] Ms. Swabb also stated that Medisys, the occupational health and safety consultant for Canada Post, prepares a report outlining the restrictions for each employee who is on modified duties or has been determined to have permanent partial disabilities. A copy of this report is in the employee's personal file and all supervisors have access to this file. [24] At the hearing, Ms. Swabb confirmed that the practice as outlined above is the one that was followed in May of 2003. Ms. Swabb testified, however, that Canada Post's official policy regarding the accommodation of permanently partially disabled employees, which is found in the Corporate Manual System, prevails over point d in the above-cited e-mail correspondence. She testified that the Policy indicates that the rules and provisions of the collective agreement may be disregarded in order to find suitable accommodation for the employee when the Corporation is otherwise unable to accommodate a disabled employee. This means that backfilling is, in fact, permitted if necessary in order to find work for a disabled employee to do during times of low mail volume. [25] Therefore, Ms. Swabb clearly indicated that the practice that was followed in May 2003, was not in accordance with the official accommodation policy. Ms. Swabb stated that in order to remedy this situation, Canada Post's current practice is to backfill a position if necessary in order to accommodate a disabled employee. [26] However, in May 2003, Mr. Ken Sagan, who was Mr. St. John's supervisor at the time, followed the practice which did not allow for backfilling. As a result, Mr. Sagan did not identify certain job duties that Mr. St. John was capable of performing on May 27, 2003. Had Mr. Sagan understood that he was permitted to backfill positions if necessary to make work available for Mr. St. John and the other disabled employees, he would have been able to assign Mr. St. John to duties in the mechanized section of the Communication Value Stream at the EMPP. There was work available in the mechanized section that was within Mr. St. John's restrictions which was being performed by non-disabled employees. This work could have been reassigned to Mr. St. John and the other employees reassigned to work elsewhere in the plant. Mr. St. John then would not have been sent home and his sick leave credits would not have been utilized. C. The No Lay-Off Rule [27] Ms. Swabb stated that low mail volume is fairly common at the EMPP. In contrast, it is rare that the EMPP will run out of work altogether for the employees to do. When there is no work at all for employees to perform at the EMPP or in the depots, or it is not cost effective to transport the employees to a facility where there is work, the rule is that Canada Post is not permitted to lay employees off; it must pay them even if there is no work for them to perform. [28] The witnesses in this case disagreed as to whether it was Article 53 or 14.02 of the collective agreement, or a combination of both that prevented Canada Post from laying off employees when there was no work in the plant for them to perform. Interestingly, there would appear to be no provision in the collective agreement that explicitly sets out Canada Post's commitment that it will not lay employees off when there is no work for them to do. [29] Article 53.01 of the collective agreement between CUPW and Canada Post provides that there shall be no lay-off of any regular employee, provided the employee agrees to be displaced to another position in accordance with the procedure set out in Article 53. Several witnesses testified that this provision of the collective agreement does not apply to temporary no-work situations; rather, it applies when there is a permanent lack of work and one or more positions must be eliminated. [30] Article 14.02 of the collective agreement provides that the normal work week for full-time employees is forty hours, eight hours per day, five days per week. This article does not, however, guarantee that an employee will work the full forty hours, or that he or she will be paid forty hours a week, for fifty-two weeks a year. Mr. Darren Steinhoff, union representative for the Prairie Region of CUPW, testified that if, for example, an employee took leave without pay, he or she would not be entitled to insist, pursuant to Article 14.02, that Canada Post must pay his or her regular wages. [31] Although there was disagreement as to the source of the no lay-off rule in the collective agreement, all of the witnesses, whether testifying on behalf of the Commission or the Respondent, stated that when there is no work to be done whatsoever in the EMPP or in the depots in the Edmonton area, the rule is clear that Canada Post is not permitted to lay employees off. They must be paid their regular wages until more mail appears, other work is found for them to do, or their shifts end. [32] The evidence presented was also clear that in no-work situations, employees, whether disabled or not, are not required to take sick leave, vacation leave or leave without pay. They are all paid their regular wages. [33] Mr. Gord Fisher, the Regional Grievance officer for the Prairie Region of CUPW, testifying on behalf of the Commission, also stated that in return for Canada Post's commitment to pay employees even when there is no work for them to do, employees must remain on the premises if required to do so by Canada Post. Mr. Fisher testified that when he is asked by employees why they can't go home when there is no work to do, he responds by saying that they are being paid for eight hours of work. Therefore, they are required to be at the workplace and remain ready to work if the work becomes available. D. The Practice Regarding Use of Leave Provisions in the Collective Agreement [34] Ms. Swabb testified that apart from low mail volume situations such as the one that prevailed on May 27, 2003, employees who are sick or otherwise incapacitated are always given the option of using leave without pay, sick leave credits or vacation time or any other applicable form of leave available under the collective agreement. [35] Paragraph (h) of the practice outlined above does not provide for such a choice to be offered to employees who are being sent home during times of low mail volume. It simply states that employees who are sent home will utilize their sick leave credits or will apply for disability insurance. [36] Ms. Swabb stated that she did not know whether Mr. St. John had been given a choice of leave options before he was sent home, but she thought maybe not. She stated, however, that if Mr. St. John had asked to access his vacation leave or leave without pay, she would have permitted this, just as she does with other employees who are unable to work. III. ANALYSIS [37] Section 10(a) of the Act makes it a discriminatory practice to establish or pursue a policy or practice that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination. [38] Section 10(b) is different from s. 10(a) in that it makes it a discriminatory practice 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. [39] There is no evidence that Canada Post struck an agreement with the union or anyone else regarding the practice of sending home employees who had PPD's when there was no work for them to do within their restrictions. Therefore, it is section 10(a) of the Act that applies in this case. [40] In human rights cases before this Tribunal, the complainant has the initial burden of establishing a prima facie case of discrimination. The Supreme Court of Canada decision in Ontario Human Rights Commission v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536, at para. 28 (O'Malley) provides the basic guidance for what is required to make out a prima facie case. The Court stated that a prima facie case is one that covers the allegations made and which, if the allegations are believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent (Dhanjal v. Air Canada, (1997), 139 F/T.R. 37 at para. 6). [41] The onus then shifts to the respondent to provide a reasonable explanation that demonstrates either that the alleged discrimination did not occur as alleged or that the conduct was somehow non-discriminatory (Morris v. Canada (Canadian Armed Forces) 2005 FCA 154 at para. 26). If a reasonable explanation is provided by the respondent, it is up to the complainant to demonstrate that the explanation is merely a pretext for discrimination (Basi v. Canadian National Railway Company (No.1) (1988), 9 C.H.R.R. D/5029 at para. 38474 (C.H.R.T.)). [42] Conduct may be found to be non-discriminatory if, in accordance with s. 15(1)(a) of the Act, it is established that it is based on a bona fide occupational requirement. Section 15(2) of the Act stipulates that for the practice to be considered a bona fide occupational requirement, it must be established that accommodation of the individual would impose undue hardship considering health, safety and cost. A. What was the practice that allegedly violated s. 10(a) of the Act? [43] The evidence established that when mail volume was low in the EMPP in May of 2003, Canada Post followed the practice described by Ms. Swabb in her e-mail correspondence with Mr. John Cherry. If there was no work for employees within a particular section of the plant, an investigation was undertaken to determine if employees were needed in other sections of the plant to complete the work there. This investigation also involved an examination of whether there was work to be done that was within the disabled employees' restrictions. If extra employees were needed in other sections, then the employees would be loaned to those sections. Provided the work was within the disabled employees' restrictions, they were also loaned to other sections. If other sections had work that fit the disabled employee's restrictions, but extra staff was not required to do the work, then above-compliment vacation leave or leave without pay was offered to all employees in the plant in order to make the work available. [44] However, Canada Post would not backfill positions in order to make work available for disabled employees at the EMPP. That is, Canada Post would not re-assign employees in a section that had work to other duties within the plant in order to make their work available to disabled employees. [45] If, after an otherwise full investigation of all of the options for re-assignment of disabled employees, it was determined that there was no productive work within the disabled employee's restrictions, he or she was sent home on sick leave. B. The Allegations [46] The Commission and the Complainant allege that the practice as set out above denies or tends to deny Mr. St. John and other disabled employees the following employment opportunities: the opportunity to perform work duties that were within their restrictions and to be paid regular wages for that work; access to the no lay-off rule which provides that even when there is no work to be done, employees will be paid their regular wages; and, the choice of the leave provisions they wished to utilize upon being sent home. [47] Before dealing with each of the above-noted allegations, I note that the issue of what is meant by the term employment opportunity was not argued by the parties. In Mossop v. Canada (Attorney General) [1991] 1 F.C. 18, aff'd on other grounds: [1993] 1 S.C.R. 554, Mr. Justice Marceau of the Federal Court of Appeal stated, in obiter, that the Tribunal should not neglect the analysis of whether the particular employment benefit which has allegedly been denied constitutes an employment opportunity within the meaning of s. 10(a) of the Act. None of the parties addressed the question of whether the above-noted allegations involved an employment opportunity within the meaning of s. 10(a). [48] In my view, a legitimate question could be raised about the ambit of this aspect of s. 10 (see: Mossop, supra; Hay v. Cameco [1991] C.H.R.D. No. 5 No. T.D. 5/91; Cramm v. Canadian National Railway (1998), T.D. 5/98 at paras. 30-35, aff'd on other grounds: (2000), 192 F.T.R. 83 (T.D.); Stevenson v. Canada (Canadian Human Rights Commission), [1984] 2 F.C. 691 at p. 721-722). However, given that this issue was not canvassed by the parties, it would not be appropriate for me to analyze the question of whether the above-noted allegations were employment opportunities within the meaning of s. 10(a). The Tribunal cannot deal with matters that were never placed before it, and that were not debated by the parties (see Bergeron v. Télébec Ltée., 2005 FC 879 at para. 63; Beauregard v. Canada Post, 2005 FC 1384 at paras. 26-27). Therefore, for the purposes of this decision, I will proceed on the assumption that the opportunities that were allegedly denied the Complainant were employment opportunities within the meaning of s. 10(a). (i) The Opportunity to Perform Work and to Be Paid Regular Wages [49] The evidence established that on May 27, 2003, there was productive work that Mr. St. John was capable of performing that had been assigned to non-disabled employees. Mr. St. John was forbidden from performing this work due to Canada Post's blanket prohibition against backfilling. The no backfilling rule prevented Canada Post from identifying and assigning work to Mr. St. John. Therefore, Mr. St. John was denied the opportunity to complete his shift and to be paid his regular wages. The Respondent's denial of this opportunity was based on the fact that Mr. St. John is disabled. [50] I find, therefore, that the Commission and Mr. St. John have established a prima facie case that when Canada Post sent Mr. St. John and four other disabled workers home early from their shift on May 27, 2003, in accordance with the practice of refusing to backfill positions, Canada Post was engaging in a practice that denied disabled employees an employment opportunity. The Respondent's Explanation [51] Canada Post did not offer any reasonable explanation for its prima facie discriminatory practice. Moreover, Canada Post did not attempt to justify its practice as a bona fide occupational requirement under s. 15(1)(a). On the contrary, counsel for Canada Post conceded that, to the extent that the practice in May of 2003 contained a blanket prohibition on backfilling, it failed to allow for the accommodation of disabled workers to the point of undue hardship. In view of the fact that Canada Post's practice in May 2003 precluded any investigation whatsoever of backfilling a position in the appropriate circumstances, it effectively blocked a viable option for accommodating Mr. St. John's disabilities. To that extent, counsel for Canada Post stated in closing argument, the practice at the time was discriminatory. [52] Given the Respondent's failure to present a reasonable explanation, or establish a justificatory defence under the Canadian Human Rights Act, I find that the Commission and Mr. St. John have established that the practice of refusing to consider backfilling in order to find appropriate work for disabled employees denied Mr. St. John an employment opportunity on the basis of a prohibited ground of discrimination. (ii) Denial of Access to the No Lay-off Rule [53] Mr. St. John and the Commission argued that the practice of sending disabled workers home when there was no available work within their restrictions was discriminatory not just because it did not allow for the reassignment of disabled workers to work duties within their restrictions, but also because it resulted in the denial of access by disabled employees to Canada Post's no lay-off rule. [54] Thus, the Commission took the position that the simple removal of the blanket prohibition against backfilling would not remedy the impugned practice. Rather, the practice of sending disabled workers home when there is no work available within their restrictions must be stopped altogether. In accordance with the no lay-off rule, disabled employees must be permitted to remain at work and collect regular wages when they cannot be accommodated. [55] As noted above, the no lay-off rule applies when there is no work available anywhere in the plant or the mail depots, or where there is work in the depots but it would not be cost effective to send plant workers to another facility. In those cases, Canada Post pays employees their regular wages even though they are not performing productive work. [56] In the view of the Commission and Mr. St. John, disabled workers for whom no work can be found should be entitled, like able-bodied employees for whom there is no work in the plant, to the benefit of the no lay-off rule. In essence, the argument is that disabled workers who cannot be accommodated are in a comparable position to that of all workers when there is no work at all to be done in the plant. Yet, because of the practice of sending disabled workers home when there is no available work within their restrictions, disabled workers like Mr. St. John are deprived of the benefit of the no lay-off rule. This, it is alleged constitutes a prima facie case of discrimination. [57] Canada Post argued that disabled workers who are sent home after an exhaustive search for alternative work within their restrictions are not laid-off and hence, are not denied the benefit of the no lay-off rule. Rather, in situations like the one on May 27, 2003, when mail volume is reduced, there is still work to be done in the plant. The goal then is to find productive work for all employees remaining in the plant. If disabled employees are sent home it is not because there is no work for them; it is because they are not able to do the work that is there to be done. Provided the practice requires that every reasonable effort be made to find alternative work for disabled employees before they are sent home, Canada Post argued, there is no prima facie discrimination. [58] For the following reasons, I agree with the Respondent that the Complainant and the Commission have not established a prima facie case of discrimination regarding this allegation. [59] The evidence in this case was clear that the rule regarding no lay-offs applies only in cases where there was no work whatsoever to be done in the plant or it was not cost efficient to transport the employees to another facility to do the available work. The evidence indicates that when there is no work to be done at Canada Post, able-bodied and disabled workers alike are paid their wages for the entire shift. Neither group is forced to take vacation time, sick leave, leave without pay or any other kind of leave or benefit to protect their income. Thus, in no-work situations all employees, whether disabled or not, are treated alike. [60] However, in situations of low mail volume, a different set of rules applies. Article 14.19 applies. Employees are loaned out to other sections in accordance with their capabilities. The goal of loaning employees in situations of low mail volume is to ensure that all employees who have chosen to remain at work are performing productive work. In doing so, Canada Post must observe the restrictions that have been assigned to disabled employees. They cannot be asked to do work that is not within their restrictions. This is when the practice, as outlined above, comes into play. [61] If, after a thorough search of the facility and the depots, it is determined that there is no work that the disabled employees are capable of doing, they are sent home. The work is there, but it is not within the disabled employees' restrictions. They are not deprived of the benefit of the no lay-off rule because that rule does not apply in situations where there is work to be done in other areas of the plant or the depots. When there is work to be done, no one is given the benefit of the no lay-off rule (including the Complainant); when there is no work to be done in the EMPP or the depots, everybody is given the benefit of the no lay-off rule (including the Complainant). Therefore, in low mail volume situations disabled employees are not deprived of access to the no lay-off rule on the basis of their disabilities, but rather on the basis of the fact that the EMPP is not in a no work situation. [62] The Commission and the Complainant argued however, that the no lay-off rule should apply to disabled workers in low mail volume situations since their disabilities have effectively put them in a no-work situation. It is only because they are disabled that the employees are unable to perform the existing work. Therefore, the refusal to apply the no lay-off rule to disabled employees in low mail volume situations is discriminatory since it deprives them of a mechanism that is available under the collective agreement to ensure that when there is no work, employees will be paid nonetheless. [63] When this argument is examined more closely, however, it becomes clear that it is not so much the denial of access to the no lay-off rule that is at the root of the complaint. Rather, the real source of the complaint is the Complainant's unequal earning power in a low mail volume situation. The argument then is that the inequality of earning power between disabled employees and non-disabled employees in a low mail volume situation is, in itself, discriminatory. [64] With respect, this argument is not based on an accurate interpretation of the rights and obligations under the Canadian Human Rights Act. Section 10(a), which makes it discriminatory practice to pursue a practice that denies employment opportunities on the basis of a prohibited ground of discrimination, must be interpreted in the light of the general purpose of the Act. Section 2 states that the purpose of the Act is to give effect to the principle that all individuals should have an equal opportunity to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society. [65] The Act therefore, does not aim to create equality of results, or economic equality, nor does it grant individuals the right to receive wages. Rather, it ensures an equal opportunity for all individuals to participate on an equal footing with other workers in the workplace. [66] There is, therefore, no general obligation on employers to compensate disabled employees who are not providing services (Canada (Human Rights Commission) v. Canada (Human Rights Tribunal) (Dumont-Ferlatte) (1997), 33 C.H.R.R. D/100 (F.C.T.D.); Cramm v. Canadian National Railway (1998), T.D. 5/98, aff'd (2000), 192 F.T.R. 83 (T.D.), Orillia Nurses' Association v. Orillia Soldiers Memorial Hospital (1999), 42 O.R. (3d) 692 (C.A.) at para 27). In Cramm, the Review Panel observed that if this were not the case, employees who are away from work because of illness or injury would be entitled to be fully indemnified by their employers for the period they were away, however, long that might be, in order to ensure that they were treated no differently than other employees. The Review Panel stated that this would clearly be an untenable result. [67] Thus, assuming that Canada Post has been diligent in looking for available work, the inequality in earning power that might arise between disabled employees and non-disabled employees in low mail volume situations is not discriminatory. Disabled employees have been given an equal opportunity commensurate with their abilities to fulfill their workplace duties and obligations. If the inequality of earning power experienced in a low mail volume situations is not in itself discriminatory, then Canada Post's refusal to top up disabled employees' wages by means of the no lay-off rule in order to eliminate the inequality of earning power cannot be discriminatory. [68] For all of these reasons, I find that Mr. St. John and the Commission have failed to establish a prima facie case that the practice of denying disabled employees the benefit of the no lay-off rule when an exhaustive search reveals that there is no work that they can perform is discriminatory. (iii) Choice of Leave Provisions [69] The Commission and Mr. St. John alleged that the impugned practice denies disabled employees the same choice that is provided to other employees who are unable to work due to incapacity, that is, the choice of which leave provision in the collective agreement they wish to access. [70] On behalf of the Commission, Mr. Darren Steinhoff testified that employees who are incapable of working are normally given a choice as to whether they wish to take paid sick leave, sick leave without pay, leave without pay or vacation leave. Mr. St. John testified that he was not given this choice when he was sent home on May 27, 2003. [71] The practice, as it was articulated in the electronic mail exchange that Ms. Swabb had with Mr. Cherry, stated: If the available work is outside the physical restrictions of the modified or PPD employee, then the duty to accommodate is no longer available and the employee is sent home to utilize their sick leave benefits. This is no different as when the employee gets initially injured and no work is available at that time, as a result, they stay at home on sick leave or disability insurance until the Corporation has work for accommodation. (emphasis added) [72] The practice as set out above, does not contemplate offering employees different leave choices. [73] Mr. St. John testified that on May 27, 2003, he was asked to fill out an application for sick leave, but he refused. Despite his refusal, Canada Post accessed his sick leave account and deducted the appropriate number of credits directly from his account. [74] Mr. St. John further testified that before he was told that he was going to be sent home, all employees in the plant were given the option of taking leave without pay or vacation leave as part of the general practice when mail volume was low. Mr. St. John stated that whenever such options were presented he refused them because he is a single father and needs the income more than the time off. He also stated that he would not take vacation leave because he uses this leave as a way to manage his stress levels so that his bipolar mood disorder does not flare up. [75] Mr. St. John argued, however, that when Canada Post told him that he was going to be sent home, he should have been provided with another opportunity to decide which kind of leave he wished to use, since at that point he knew that the option of receiving regular wages was off the table. [76] Mr. St. John testified that maintaining control over his sick leave credits and deciding when he will use them is particularly important to him. The nature of his disability is such that he requires hospitalization from time to time for periods of up to a month at a time. Therefore, he needs to save his sick leave credits so that he has enough to cover these periods of hospitalization. He worries that when Canada Post dips into his credits in order to cover periods when there is no work that he can perform at the EMPP, he may not have enough to cover his hospital stays. [77] The practice in May of 2003 of automatically deducting sick leave credits when an employee was sent home denied Mr. St. John the choice of leave options that was provided to other employees who were unable to work for any reason. This practice had an adverse effect on Mr. St. John's ability to deal with his disability. Therefore, I find that Mr. St. John and the Commission have established a prima facie case that the practice with regard to the choice of leave options deprived or tended to deprive Mr. St. John of an employment opportunity. The Respondent's Explanation [78] Again, to his credit, counsel for Canada Post conceded that there was no reasonable explanation for failing to offer the choice of leave options to disabled workers who are sent home. He stated that these workers should probably be offered the same choice that is offered to all employees who, because of incapacity are unable to perform productive work. [79] Ms. Swabb testified that the practice in May 2003 was based on the assumption that if the employees were unable to work, they should be placed on sick leave. She stated that this was because it was thought that use of sick leave credits was the most expedient way of providing income protection for employees like Mr. St. John. [80] Ms. Swabb stated that Canada Post did not consider whether use of the employees' sick leave credits on their behalf might have a negative impact on their ability to manage their disabilities, as in the case of Mr. St. John. [81] In view of the fact that Canada Post has not provided a reasonable explanation or justification for refusing to offer a choice of leave to employees who are sent home, I find that the Complainant and the Commission have succeeded in establishing that, to the extent that it does not allow for a choice of leave options, the practice deprived Mr. St. John of an employment opportunity on the basis of his disability. IV. REMEDY [82] As a result of the settlement of the section 7 component of the complaint, Mr. St. John withdrew his request for individual remedies under sections 53(2)(e) and 53(3). The Commission requested, however, that the Tribunal issue an order pursuant to s. 53(2)(a) that Canada Post cease the practice of sending disabled workers home as it was described by Ms. Swabb in the hearing and documented in the electronic mail message from her to Mr. Cherry. [83] For the reasons provided above, I find that the order requested by the Commission is not appropriate. I have found that the practice was discriminatory only to the extent that it contained a blanket prohibition on backfilling and did not offer employees who were sent home a choice of leave options. [84] Therefore, in my view the following order is most appropriate in the circumstances: Canada Post is ordered to cease the application of the blanket prohibition against backfilling that formed part of the practice in May 2003; Canada Post is further ordered to offer the same leave options to employees for whom alternative work cannot be found as is offered to other employees who are sent home for reason of incapacity. Signed by Karen A. Jensen OTTAWA, Ontario May 15, 2007 PARTIES OF RECORD TRIBUNAL FILE: T1124/0606 STYLE OF CAUSE: Jim St. John v. Canada Post Corporation DATE AND PLACE OF HEARING: January 29 to 31, 2007 February 1 & 2, 2007 Edmonton, Alberta DECISION OF THE TRIBUNAL DATED: May 15, 2007 APPEARANCES: Jim St. John For himself Ceilidh Snider For the Canadian Human Rights Commission Zygmunt Machelak For the Respondent